COURT FILE NO.: CR-23-30000246-0000
DATE: 20231027
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. W.F.
BEFORE: Justice E.M. Morgan
COUNSEL: David Robinson, for the Applicant/Defendant
Melissa Mandel, for the Respondent/Crown
HEARD: October 26, 2023
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
DIRECTIONS RE APPLICATION UNDER Ss. 278.1-278.91 of the criminal code
[1] The Applicant is charged with sexual assault, sexual interference, and assault. The Complainant is his daughter. The case against the Applicant will likely be based exclusively on the allegations made by the Complainant.
[2] Before getting underway with the present Application, counsel for the Applicant advised me that there is another Application pending in this matter scheduled to be heard on December 15, 2023. That Application will be under s. 278.3 of the Criminal Code pertaining to therapeutic records. The Applicant has issued a subpoena to Dr. I.B. as the possessor of those records to attend at court with the records. Apparently, the subpoena was dated the same return date as the present Application, so Dr. I.B. attended at court and indicated to me that he objects to having to produce the therapeutic records.
[3] Counsel for the Crown then advised me that on September 16, 2023, Justice Low issued an Order appointing Kelley Bryan as counsel for the Complainant in the s. 278.3 Application. She suggested that Dr. I.B. have a phone call with Ms. Bryan, which he did outside of the courtroom. When he returned, Dr. I.B. indicated that he understood that the therapeutic records would be addressed with Ms. Bryan present at the next hearing. At Applicant’s counsel’s suggestion and with Dr. I.B.’s agreement, I directed that the subpoena be extended or re-issued for December 15, 2023 and that Applicant’s counsel arrange for it to be re-served on him.
[4] Turning to the Application before me today, the Applicant seeks an Order that a phone call between the complainant and the Applicant, a recording of which is currently in the possession of the Applicant, is not a record as contemplated by s. 278.1 and 278.92 of the Criminal Code. If the recording is not a record, there would be no need to determine its admissibility at a hearing under s. 278.92(2).
[5] The Applicant’s supporting affidavit is silent on the circumstances of the recording, although it appears from the overall context that the phone call was surreptitiously recorded.
[6] Applicant’s counsel submits that the Complainant does not have a reasonable expectation of privacy in the recorded message since it was recorded in a phone call to him and deals with an unrelated matter – the Applicant’s and his former spouse’s family law proceedings. Accordingly, he argues that the messages are not “records” as contemplated by s. 278.92. Respondent’s counsel submits that the Complainant does have a reasonable expectation of privacy in the messages, and that they are therefore “records” that fall within the regime covered by ss. 278.92(2).
[7] Communications will not be considered “records” and be subject to a screening regime for the mere reason that their publication or airing in open court would cause embarrassment, discomfort or personal inconvenience to the Complainant: R. v. J.J., 2022 SCC 28, at para 45. The intrusion on privacy must, in the Supreme Court’s words, “strike at her more intimate self”: Ibid., at para 53.
[8] In pursuing that analysis, the context in which the Applicant came into possession of the recording is a significant factor in determining whether confidentiality is a component of it. The Supreme Court of Canada has indicated that one-on-one communications between a complainant and accused may attract an enhanced expectation of privacy; and this is so even where, as here, the accused and complainant are in an adversarial relationship at the time of the recording. Similarly, surreptitiously obtained communications are more likely to embody an expectation of privacy than are publicly accessible communications: Ibid., at paras 60-62.
[9] The message in issue was apparently surreptitiously recorded in September of 2018, during a time when the then-11 year old Complainant was experiencing her parents going through difficult family court proceedings. The fact that the Applicant was not transparent in making a passing conversation into a permanent record, together with the context of a high conflict family law proceeding, point to the Complainant’s reasonable expectation of privacy being a characteristic of this communication: R. v. H.A.R., 2019 ONSC 7145, at para 35; R. v. F.A., 2020 ONCJ 178, at paras 22-24.
[10] In general, where the information in messages sought to be introduced into the evidentiary record is similar to what would be contained in a medical or therapeutic record, it may indicate that the message raises significant privacy interests and should be subject to the Criminal Code’s screening regime: J.J., at para 55.
[11] By way of illustration, a message that discusses a mental health diagnoses, or a complainant’s medical or psychiatric history, or prior sexual abuse, is generally considered to carry an expectation of privacy for the purposes of the screening provisions: Ibid., at paras 55-56. Likewise, explicit communications that relate to the subject matter of the charge, or videos and/or photographs that relate to the subject matter of the charge, will often indicate a reasonable expectation of privacy: Ibid., at paras 65-57, 71.
[12] It is uncontroversial that electronic communications between an accused and a complainant, even if not sexual, may attract a reasonable expectation of privacy if they are personal or intimate in nature. However, counsel for the Applicant points out that in order to fall under the definition of a “record” in s. 278.1 of the Criminal Code, the communication must be one that “contains personal information for which there is a reasonable expectation of privacy”. It is the Applicant’s view that the telephone conversation may exhibit some expectation of privacy, but the message from the Complainant to the Applicant does not convey any “personal information”.
[13] With respect, Applicant’s counsel draws too narrow a line around the notion of personal information. “Personal” does not necessarily mean sexual, nor does it mean something which is necessarily intimate. It means, in the Supreme Court’s view, anything that touches on the Complainant’s “overall physical, psychological or emotional well-being…[that has] implications for the complainant’s dignity: J.J., at para 42.
[14] In the recorded phone conversation, the Complainant exposes her ill feelings to her father about his difficult dispute with her mother; and it is made clear in the recording that the family law issues were impacting on her emotional well-being. In my view, “the “dissemination of highly sensitive personal information” of this nature can result “not just in discomfort or embarrassment, but in an affront to the [Complainant’s] dignity”: Ibid., at para 45, quoting Sherman Estate v. Donovan, 2021 SCC 25, at para 7.
[15] I agree with the submission of counsel for the Crown that the Complainant’s feelings toward her parents’ conflictual family law proceedings go to the core of what a young teenager – or, at the time, a young pre-teenager – would consider highly sensitive and personal. It is entirely understandable that for the Complainant her parental relationships are a personal matter that is integral to her emotional well-being. The production of the recorded conversation in court would have an impact that goes well beyond inconvenience to touch on her sense of dignity.
[16] The recorded message in issue is a “record” as contemplated by the s. 278 evidence screening regime. A hearing must therefore be held pursuant to s. 278.93 of the Criminal Code.
[17] The hearing under s. 278.93 is to be scheduled with the criminal trial office in the usual way. In advance of the hearing, the Complainant and her counsel are to receive a copy of the Application and of the transcript as well as the audio of the recorded message in issue.
Morgan J.
Date: October 27, 2023