Court File and Parties

COURT FILE NO.: CR-22-56

DATE: 2022-12-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. O.J.

BEFORE: Justice M.D. McArthur

COUNSEL: A. Orlov Counsel, for the Crown G. Snow Counsel, for the Applicant

HEARD: December 22, 2022

ENDORSEMENT

ReGarding RECORDS

[1] The applicant brings this in camera application for an order declaring that text messages in the possession of the applicant are not records pursuant to section 278.1 of the Criminal Code of Canada. Other relief is requested pursuant to the statutory regime if these are found to be records.

[2] The applicant is charged with one count alleging a sexual assault upon the complainant in May 2016.

[3] The matter is scheduled for jury trial commencing June 12, 2023.

[4] There is non-publication ban in effect.

Background

[5] The applicant and complainant are past domestic partners. They share a child born of their relationship.

[6] The complainant-initiated email communications with the applicant are brief and limited between June 10 and 13, 2020. These messages are contained in a sealed envelope and filed with the court on this application.

[7] The copies of the email message trail have been produced by defence. It comprises of approximately 2 ½ printed pages.

[8] There is nothing in the content of sexual nature in any of the messages. The messages, outside of reference to their daughter, involve the complainant asking for money from the applicant since she was in the process of purchasing a property and commenting by her on his reasons for him not giving her money in the past.

Issue

[9] The issue is whether these text messages contain personal information for which there is a reasonable expectation of privacy.

[10] I find they do not for the following reasons.

The Law

[11] Under section 278.1 of the Criminal Code the definition of record is any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counseling, 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.

[12] This issue has been addressed directly by the Supreme Court of Canada in R. v. J.J., 2022 SCC 28 at para 29. If the judge determines that the proposed evidence is not a “record” under section 278.1, the application will terminate.

[13] In R. v. J.J., the Supreme Court stated at para 42:

Ultimately, we conclude that a non-enumerated record will only be captured by s. 278.1, in the context of the record screening regime, if the record contains information of an intimate or 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.

[14] The court also expressly indicated that both elements of this phrase "personal information" and "reasonable expectation of privacy" serve to delimit the scope of records and shed light on the nature of the privacy interests at issue such that:

a. "personal information" invokes the concept of informational privacy which protects the ability to control the dissemination of intimate and personal details about oneself that go to one's "biographical core" with informational privacy is based on the notion of the dignity and integrity of the individual. Complainants have privacy interests in highly sensitive information about themselves, the disclosure of which can impact on their dignity. The court observed the dissemination of highly sensitive personal information can result not just in discomfort or embarrassment, but in an affront to the affected person's dignity. To reach the level of an impact on dignity, an intrusion on informational privacy must transcend personal inconvenience by reason of the highly sensitive nature of the information that might be revealed;

b. reasonable expectation of privacy is informed from s. 8 Charter and common law concepts, content and meaning. The person claiming a privacy right must have a subjective expectation of privacy that is objectively reasonable in the circumstances and only engages legally recognized privacy interests;

c. both of these principles establish that the privacy interests at issue must meet a high threshold and;

d. this is not a content-neutral approach which ensures an accused may still have a reasonable expectation of privacy regardless of the legal or illegal nature of the items sought. Records do not attract a reasonable expectation of privacy simply because of the medium used to convey them. Rather, the more important consideration is the sensitivity of the information contained in the record.

Position of the Parties

[15] The Crown submits this is personal information for which the complainant has a reasonable expectation of privacy.

[16] The defence submits the text messages do not contain personal information for which there is a reasonable expectation of privacy.

Analysis and Discussion

[17] Here, the tenor and gist of these brief communications from the complainant to the applicant is essentially this: with the exception of the medical condition of their daughter which ought to be excised in any event, the complainant makes an initial request for money from the applicant in the context of his past offer, she is looking to buy a property, wants $9,500 but will take $5,000 and balance later and he has showed her he has the funds. In the second request for money, she references his excuses that did not have money and she expresses her frustration and dissatisfaction with him and her indication she will not rely on him.

[18] The Crown submits that the cases of R. v. A.C. 2020 ONSC 159 and R. v. K.D. 2022 ONSC 6105 both support the finding that these are “records” as defined.

[19] R. v. A.C., decided before R. v. J.J., involved a sequence of email communications between a complainant and defendant that involved the feelings, aspirations, and expectations between the parties of their marriage and its breakdown that entailed personal information, specifically, the complainant's, feelings, aspirations, and expectations. Justice Sutherland found the emails are records since they contained personal information for which there was a reasonable expectation of privacy.

[20] In R. v. K.D., the accused was charged with one count of sexual assault. There existed four groups of messages; (1) a WhatsApp conversation between the complainant and accused on the date and before the alleged sexual assault occurred, (2) a WhatsApp message from the accused to the complainant following and pertaining to the occurrence; (3) a series of Instagram messages between the complainant and the accused’s girlfriend following and pertaining to the occurrence and other things; and (4) a series of WhatsApp messages between the accused and the complainant over several weeks prior to the occurrence which do not pertain to any sexual activity and which are not of a sexual nature.

[21] In K.D. the court found that group (1) messages were not records since evidence the complainant was smoking was personal in nature but did not engage the complainant’s personal dignity or privacy interests and was not the kind of highly sensitive personal information the legislation was intended to protect.

[22] The other groups of messages were found to be records. As to the group (4) messages, these consisted of 14 conversations over 3 months that were described as casual conversations that discussed plans to meet on various occasions, the complainant’s response to the accused not being able to meet, discussion of events in their daily lives, their moods and activities and the complainant talking about her sleep schedule and drug use. In one conversation, she says she is not feeling great because she is having difficulty securing a co-signer for a student loan.

[23] The court found that there was private and sensitive information in the messages; the complainant discussed her movements, feelings, difficulty in securing a student loan, and sleep schedule. The court found this to be intimate information, especially when read all together, began to look like a biographical core of lifestyle information about the complainant with some of it highly sensitive and, if revealed, would impact on the complainant's dignity.

[24] Here, unlike the facts in the cases referred to above, the complainant’s ask for money and her frustration with the accused, does not go to the complainant’s biographical core of lifestyle information. This court finds that brief and isolated expressions of frustration in relation to the ask for money to buy property, without more, does not rise to the level that contains the complainant’s thoughts, aspirations, feelings, friendships, social interactions and the details of daily activities that are regarded as important features of the complainant’s biographical core nor does this information negatively impact on her dignity.

[25] For these reasons, I find that the text messages contained and as sealed are not records pursuant to section 278.1 of the Criminal Code of Canada.

Justice M.D. McArthur

Date: December 28, 2022