R. v. C.M.G., 2023 ONSC 1478

COURT FILE NO.: CR-22-0068 DATE: 2023/03/03 CORRECTION DATE: March 15, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – C.M.G. Accused

Counsel: Z. Huywan, for the Crown R. Currie, for the Defendant

HEARD: February 14, 2023

CORRECTED REASONS FOR DECISION Correction to Decision: Changed accused’s name to initials per Publication Ban.

PUBLICATION RESTRICTION NOTICE

By court order made under s. 486.4(1) of the Criminal Code, no information that might identify the person described in this judgment as the complainant can be published, broadcast, or transmitted in any manner. This judgment has been edited to comply with this restriction. However, the accused has elected trial by jury. Section 648(1) of the Criminal Code bans publication of any portion of the trial at which the jury is not present until the jury retires to consider its verdict. This section has been interpreted as applying to pre-trial applications such as the one that is the subject of these reasons and the trial in this matter has not commenced.

M.G. Ellies R.S.J.

OVERVIEW

1C.M.G. is charged with four counts of sexual assault and one count of failing to comply with a release order. His former common law spouse is the complainant in all the charges.

2The defence seeks a ruling as to whether certain records in the possession of C.M.G. meet the definition of “record” set out in s. 278.1 of the Criminal Code and are, therefore, subject to the regime set out in ss. 278.92 to 278.95 of the Code (the “record screening regime”).

BACKGROUND

3Unfortunately, the background facts in this matter are not very clear from the materials filed. I have had to make certain assumptions and I have not been able to verify my assumptions from any source documents.

4The accused and the complainant lived together as common law spouses for about four years. They have one child together. On April 14, 2020 [1], the complainant complained to the police, as a result of which the accused was arrested. He was released by a justice of the peace on April 15, 2020. I have not been told what charges resulted from that complaint, only that the charges were resolved before the Ontario Court of Justice in April 2021.

5On December 22, 2021, the complainant made another complaint to the police. The complaint included an allegation that the accused had sexually assaulted the complainant "countless" times in the period preceding her complaint on April 14, 2020, even though they had not been mentioned in that complaint. I assume that the present indictment relates entirely to the December 2021 complaint.

6All the records in question are in the possession of the accused, who submits that they serve to contradict the allegations of the complainant. The records consist of the following:

(a) Screenshots of family photos stored on Google Photo Cloud during the period of October 1, 2018, and November 30, 2018.

(b) Emails sent by the complainant to the accused during the period from the end of June to the end of July 2020, after the complainant made her first complaint to the police in April 2020.

(c) A video recording of the complainant attending at the accused’s home to speak with him. The recording was taken by the accused’s girlfriend days after the complainant made her second complaint to the police and the accused was arrested on December 22, 2021.

(d) Screenshots of Facebook Messenger and Instagram messages and their timestamps. One of the messages was sent by the complainant’s sister. The others were allegedly sent by the complainant using fake accounts under different names. Included in this group is one message sent to an allegedly fake phone number used by the complainant and another screenshot of messages sent to the complainant’s identified phone number.

(e) Instagram messages from the complainant sent four days after the accused’s arrest in December 2021, also using fake accounts in names other than her own.

(f) Documents from November and December 2021 associated with family law proceedings between the complainant and the accused, including a Form 13 Financial Statement and a Form 17C Settlement Conference Brief.

7The Crown was not provided with any of the records prior to the hearing. Nonetheless, based the summary set out above, the Crown conceded that some of the records were not subject to the record screening regime. Counsel for the accused provided Crown counsel with a digital copy of the records during the hearing, for the limited purpose of making submissions. Upon examining the records, the Crown made further concessions, as set out below.

ISSUE

8With respect to those records regarding which there has been no concession by the Crown, the sole issue is whether use of the record is subject to the record screening regime.

ANALYSIS

9Pursuant to s. 278.92, an accused cannot adduce certain records relating to a complainant into evidence without permission of the court when defending any one of an enumerated list of offences, including sexual assault. I assume that the accused in this case seeks to rely on the records in question in connection with the sexual assault charges he faces, and not in connection with the breach charge relating to the release order. Otherwise, the record screening regime would not apply and no ruling would be necessary.

10The records to which the regime applies are defined in s. 278.1, which defines “record” as meaning:

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.

11Where a record does not fit within one of the enumerated categories set in s. 278.1, as is the case with most of the records at issue here, the applicability of the record screening regime will depend upon whether the record: (1) contains personal information, and (2) whether that information may give rise to a reasonable expectation of privacy. A record containing personal information will only create a reasonable expectation of privacy "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": R. v. J.J., 2022 SCC 28, at para. 54.

12To determine whether the records in question give rise to a reasonable expectation of privacy, both the content of the record and the context in which it was created must be considered: J.J., at para. 54. Where the records include communications, as they do here, the context includes both the manner in which the communication was sent and the nature of the relationship between the sender and recipient: R. v. Mai, 2019 ONSC 6691; R. v. J. K., 2021 ONSC 7604.

13With this legal backdrop in mind, I turn to the records at issue in this application.

The Records in Groups (a) and (c)

14The Crown and the defence agree that none of the records listed in (a) and (c) above fit the definition in s. 278.1 of the Code. I also agree.

15While images of oneself are certainly capable of containing personal information, there could be no reasonable expectation of privacy in the photos, which depict the complainant, the accused, and their child in scenes common to such family photos. The photos were obviously taken to be shared with others, including the accused.

16Nor could there be a reasonable expectation of privacy on the part of the complainant relating to the video footage taken of her in broad daylight approaching the accused's house in a neighbourhood filled with houses.

The Records in Group (b)

17The Crown agrees that all but three of the emails in this group fall outside of the record screening regime. I also agree. The messages contain no personal information. One of them consists of a family photo which, as I have explained, does not give rise to a reasonable expectation of privacy.

18The three emails at issue are labelled “9.jpg”, “14.jpg”, and “15.jpg”. I will deal with them in descending numerical order because, in my view, the extent of the personal information contained in each decreases as one progresses in that order.

19Message 15.jpg consists of two messages: one from the accused sent at 8:27 p.m. on July 26, 2020, and a response sent by the complainant at 9:57 p.m. that night. Among other things, the complainant writes that she loves the accused and that she has been thinking of him all night.

20The expression of one’s thoughts and feelings can constitute personal information: R. v. J.K., 2021 ONSC 7604, at para. 23; R. v. T.A., 2020 ONSC 2613, at paras. 39-40. However, whether that expression can reasonably give rise to an expectation of privacy in the information contained in the expression depends on the context in which it is expressed. I see nothing in the context of this brief exchange that would make the expression integral to the complainant’s overall physical, psychological, or emotional well-being.

21Message 14.jpg consists of another exchange between the accused and the complainant, this time on the evening of July 25, 2020. The accused asks the complainant how it is “going tonight”. The complainant responds by telling the accused about her activities that night with their child, among other things. She tells the accused they missed him. She also says was “in junk again”. Neither the Crown nor the defence was able to shed any light on the meaning of this phrase. However, it was agreed that it was not sexual. On that basis, I see very little personal information and no expectation of privacy in the context in which the complainant’s message was sent.

22The third message, message 9.jpg, is the longest of all the messages. It precedes the other messages by a few days, being dated July 19, 2020. In it, the complainant tells the accused that she is “finished with the inconsistencies and games” of the accused and goes on to tell him that there will be no visitation with his son and “zero” communication between her, the accused, and the accused’s father until matters are settled in court.

23Notwithstanding its length, I can see no personal information at all in this message.

24For these reasons, I have concluded that none of the records in group (b) fit the definition in s. 278.1.

The Records in Groups (d) and (e)

25During the hearing, once the Crown had access to the records in question, it was also agreed that none of the items listed in (d) and (e) fit the definition of record in s. 278.1. I also agree.

26Common to both (d) and (e) is a folder labelled 26-DEC-2021. Indeed, (d) is comprised only of this folder. There are additional records in (e) to which I will come.

27The records in the folder 26-DEC-2021 include a message from the complainant’s sister and a message allegedly from the complainant using a fake name: “Suzy Smith”. The messages are similar, indicating that the complainant tried to "stop" things, which I presume means the charges. There is no personal information in either message, with the possible exception of a statement by the sister that the complainant was "upset about the past". If this constitutes personal information, it does not constitute personal information about which the complainant could have a reasonable expectation of privacy.

28In addition to the file marked 26-DEC-2021, the records in group (e) above include three screenshots. One of them is entitled “previousfakeaccount.jpg”. This screenshot is of a message sent by the accused to the complainant in September 2020 to what the accused alleges was another fake account used by the complainant at that time. The message contains no personal information.

29The other two records in folder (e) are different. They consist of what appears to be screenshots of text messages exchanged between the accused and the complainant, in one of which the complainant’s real phone number shows up and in the other of which the complainant is allegedly using a different “burner” phone number. The message sent to the burner number is dated September 2, 2020. I am unable to determine the date of the messages sent to the complainant’s real phone number.

30These two records do contain some personal information relating to the complainant’s status as a mother and to her sleep habits. There was also some personal information contained in the exchange of messages to the complainant’s real phone number, including her relationship status with another man. However, I do not find that the complainant could possibly have had a reasonable expectation of privacy in these records. Like the personal information contained in all of the records in this group, it does not extend beyond the mundane: R. v. J.J., at para. 56.

31For these reasons, I conclude that the messages in both groups fall outside of the record screening regime.

The Records in Group (f)

32The remaining records at issue are found in group (f). The parties and I agree that, with two exceptions, none of these records fit the definition in s. 278.1. They consist of letters and messages exchanged between the accused and the complainant’s lawyer in the family proceedings.

33The two exceptions are the Form 13 (Financial Statement) and Form 17C (Settlement Conference Brief). As I pointed out to counsel during the hearing, rules 17(22.2) and (23) of the Family Law Rules, O. Reg. 114/99, protect the confidentiality of the materials filed in a settlement conference. Section 278.1 of the Criminal Code specifically includes records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature.

34I am not able to determine if the Financial Statement was filed in connection with the settlement conference or outside of it. Nonetheless, it contains personal information such as information about the complainant's financial status, which I find could give rise to a reasonable expectation of privacy. The Settlement Conference Brief clearly falls within the confidentiality provisions of the Family Law Rules.

35For these reasons, these records are subject to the record screening regime.

CONCLUSION

36With the exception of the two family law documents referred to immediately above, the records in question are not subject to the record screening regime. As I have explained, they either contain no personal information or contain personal information which could not reasonably give rise to an expectation of privacy because it is not information of an intimate and highly personal nature that is integral to the complainant's overall physical, psychological, or emotional well-being.

M.G. Ellies R.S.J.

Released: March 3, 2023 Correction Released: March 15, 2023

Footnotes

1This comes from the defendant's factum. During the hearing, however, it was agreed that the complaint was actually made in January 2020. If that is correct, there is no explanation as to why the accused was not released until April 2020.