COURT FILE NO.: CR-23-40000360-0000 DATE: 20240418

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – P.L. Applicant

COUNSEL: A. Max, for His Majesty The King (Respondent) R. Lichtman, for P.L. (Applicant) J. Birenbaum, for the complainant M. Stephens, for S.L.

HEARD: November 30, 2023; March 7, 2024

REASONS FOR DECISION

RULING

(Applications Pursuant to ss. 276 and 278.92 of the Criminal Code)

SCHRECK J.:

[1] P.L. and T.M. were in a common law relationship from 2007 until 2014. They had one daughter together, S.L., and each also had children from previous relationships. In April 2022, T.M. contacted the police in relation to concerns about her ability to have access to S.L. In the course of speaking to the police, she alleged that P.L. had sexual intercourse with her without her consent on one occasion in 2015. As a result of this allegation, P.L. was charged with a single count of sexual assault.

[2] P.L. acknowledges that he and T.M. had sexual intercourse on one occasion in 2015 but maintains that it was consensual. He intends to testify at his trial that he is able to recall the incident in detail because the encounter differed in some respects from the sexual encounters they usually had during their relationship. He wishes to adduce evidence about those past encounters to rebut any suggestion that it is implausible that he would be able to recall the 2015 encounter in such detail over seven years after it occurred. He has accordingly brought an application pursuant to s. 276 of the Criminal Code seeking to have the evidence admitted. The Crown and T.M. oppose the application on the basis that the evidence does not relate to “specific instances of sexual activity,” as required by s. 276, as well as on the basis that it is irrelevant and that its prejudicial effect substantially outweighs its probative value.

[3] P.L. also wishes to adduce evidence of various e-mails, texts and other written communications between T.M. and others which he submits support an inference that she had a motive to fabricate her allegations against him. It is his position that none of these communications are “records” within the meaning of s. 278.1 of the Criminal Code, but if they are, he applies pursuant to s. 278.92 to have them admitted into evidence. The Crown and T.M. take the position that all of the communications are “records” and oppose the application to admit them.

[4] For the reasons that follow, the application pursuant to s. 276 is dismissed. While I am satisfied that the evidence relates to “specific instances of sexual activity” and that it has some relevance, the Crown has agreed not to challenge P.L.’s ability to recall the 2015 incident (although it will challenge the credibility of his account). As a result, the probative value of the evidence is minimal and is substantially outweighed by its prejudicial effect.

[5] The application pursuant to s. 278.92 is granted in part. Most of the communications are “records” within the meaning of s. 278.1. In some cases, the prejudicial effect of the communications substantially outweighs their probative value. In other cases, it does not.

I. FACTUAL CONTEXT

A. Background

[6] The applicant and the complainant were in a common law relationship from 2007 until 2014. They have one daughter together, S.L., who was in her early teens at the time the allegations were made.

[7] There was a longstanding dispute over the complainant’s custody of and access to S.L. It is unclear whether there were family court proceedings at any time. At some point, the Children’s Aid Society (“CAS”) was involved, but there is no evidence as to any action taken by it. At the time the sexual assault allegations were made, there was no family court order in existence, nor was either parent subject to any restrictions by the CAS.

[8] S.L. resided with the applicant at the time the allegation was made. Although the complainant wished S.L. to reside with her some of the time, it appears that S.L. was unwilling to do so. The complainant believed that this unwillingness was the result of the applicant’s influence.

B. Disclosure of the Allegation

[9] On April 19, 2022, the complainant called 911 and reported that her daughter had experienced violence while living with the applicant and that he had alienated her from the complainant. Two police officers attended the complainant’s home to speak to her, and she was later taken to the police station to be interviewed.

[10] It appears that the complainant was unable to identify any specific safety concerns respecting her daughter. However, she told the police that her daughter was unwilling to see her and that she believed this was due to the applicant’s influence. The police officers told her more than once during the course of the interview that absent a family court order, there was nothing they could do and that it appeared to them that this was an issue for family court rather than the subject of a criminal investigation. The complainant told the police that she had tried to address her concerns through the family court system and by contacting various agencies, but had been unsuccessful.

[11] Approximately one hour and 37 minutes after the interview commenced, the complainant told the police officers that on one occasion in 2015, the applicant had sexual intercourse with her without her consent. She provided more details about this allegation in subsequent statements she made on April 22, 2022 and November 12, 2022. On the latter date, she told the police that the alleged sexual assault had occurred on August 2, 2015.

[12] On December 10, 2022, the applicant was charged with one count of sexual assault.

C. Specifics of the Complainant’s Allegation

[13] On August 2, 2015, the applicant and the complainant drove the complainant’s older daughter (who was not the applicant’s daughter) and the applicant’s son to summer camp outside Toronto. After leaving the children at camp, they drove to the complainant’s home.

[14] The complainant told the police that when they arrived at her home, she and the applicant had sexual intercourse in her bedroom. According to the complainant, she was under the influence of medication she had taken and did not have the capacity to consent to sexual activity, nor was she able to communicate verbally. She did not wish to have sexual contact with the applicant.

D. The Applicant’s Account

[15] The applicant swore an affidavit in support of his s. 276 application. In it, he agrees that he and the complainant had sexual intercourse after returning from the summer camp, but maintains that the encounter was consensual. He intends to testify that the complainant initiated the sexual contact and indicated through her actions that she consented to it.

[16] According to the applicant, he is able to distinctly remember this particular sexual encounter on August 2, 2015 because it was unusual and differed from sexual encounters they had during their relationship. His affidavit provides details about their previous encounters and how the encounter on August 2, 2015 was different.

II. THE SECTION 276 APPLICATION

A. Section 276 of the Criminal Code -- Overview

[17] Section 276(1) of the Criminal Code provides that in proceedings involving sexual or related offences, evidence that the complainant engaged in sexual activity other than that which forms the subject matter of the charge is not admissible to support an inference that the complainant (a) is more likely to have consented to the sexual activity that does form the basis for the charge; or (b) is less worthy of belief. These two illegitimate inferences, often referred to as the “twin myths,” have a long history of creating unfairness to complainants in sexual assault trials and the provision is designed to address this: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at paras. 34-37, 43-46; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 60.

[18] To ensure that the evidence of other sexual activity is not used for a prohibited purpose, s. 276(2) makes such evidence presumptively inadmissible, but recognizes that it may be admissible for some purposes: Barton, at paras. 61-62. To have the evidence admitted, a defendant must establish that the requirements of s. 276(2) have been met, namely that the evidence:

(a) is of specific instances of sexual activity; (b) is relevant to an issue at trial; and (c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[19] Section 276(3) requires the court to consider the following factors in determining whether the requirements of s. 276(2) have been established:

(a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society’s interest in encouraging the reporting of sexual assault offences; (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias; (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (f) the potential prejudice to the complainant’s personal dignity and right of privacy; (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge, provincial court judge or justice considers relevant.

[20] Ultimately, s. 276 requires the court to balance the probative value of the proposed evidence against the danger of prejudice arising from its admission, taking into account the factors set out in s. 276(3): Goldfinch, at para. 69.

B. The Basis for the Application

[21] There is no issue that evidence of sexual activity between the applicant and the complainant throughout their prior relationship is presumptively inadmissible and can only be admitted if the requirements of s. 276(2) are met. The applicant submits that evidence of details of how they engaged in sexual activity during their relationship and how that differed from the sexual encounter in 2015 has probative value because it “explain[s] why he has a specific, clear, and vivid recollection of the sexual intercourse that took place” on the date in question. The applicant submits that the evidence is also necessary to “challenge [the complainant’s] recollection of the events.” [^1]

C. “Specific Instances of Sexual Activity”

[22] The Crown takes the position that the evidence the applicant seeks to have admitted is not evidence “of specific instances of sexual activity,” as required by s. 276(2)(c), because the applicant “does not specify in his application the number of instances or dates of those previous sexual encounters.” [^2]

[23] The “specific instances” requirement was explained in Goldfinch, where, as in this case, the evidence sought to be admitted related to sexual activity within an ongoing relationship (at para. 53):

The words “specific instances of sexual activity” must be read in light of the scheme and broader purposes of s. 276. The requirement that evidence be “specific” prevents aimless or sweeping inquiries into the complainant’s sexual history. The accused must point to identifiable activity, but the degree of specificity required in a particular case will depend on the nature of the evidence, how the accused intends to use it, and its potential to prejudice the proper administration of justice. As Doherty J.A. noted in L.S. [2017 ONCA 685, 254 C.C.C. (3d) 71], specificity is required so that judges may apply the scheme in a way that effectively protects the rights of the complainant and ensures trial fairness. A purposive interpretation thus calls for evidence that is sufficiently specific to support a fully informed analysis, allowing the judge to circumscribe what evidence may be adduced and how it may be used.

Evidence of a relationship that implies sexual activity, such as “friends with benefits”, as defined by the accused here, inherently encompasses specific instances of sexual activity. Requiring further details would unnecessarily invade the complainant’s privacy, defeating an important objective of the provision. I agree with the statement in L.S. that specifying the parties to the relationship, the nature of that relationship and the relevant time period satisfies the purposes of trial fairness (para. 83). Those criteria are met in this case.

See also R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, at paras. 47-49; R. v. L.S., 2017 ONCA 685, 254 C.C.C. (3d) 71, at paras. 82-85.

[24] In my view, the “specific instances” requirement is met in this case. As set out in Goldfinch, the applicant has specified “the parties to the relationship, the nature of that relationship and the relevant time period.” It is unrealistic and unnecessary to expect the applicant to identify the number of instances and the dates on which he had sexual relations with his former spouse, and doing so would unnecessarily invade the complainant’s privacy.

D. Probative Value

[25] The primary reason for which the applicant seeks to have the evidence admitted is to counteract any tendency by the trier of fact to doubt the veracity of his account on the basis that it would be unlikely that he would recall a sexual encounter from seven years earlier in such detail. The evidence would allow him to explain why he has such a detailed recollection despite the passage of time, namely, because the encounter was unusual when compared to most of the sexual encounters he and the complainant had had during their relationship. While “[b]are assertions that ... evidence will be relevant to context, narrative or credibility cannot satisfy s. 276(2)” (Goldfinch, at para. 51), there are more than bare assertions in this case. The applicant has identified a specific line of reasoning which he is concerned the trier of fact will engage in absent the evidence.

[26] The basis on which the applicant seeks to have the evidence admitted does not, in my view, engage either of the “twin myths.” The applicant is not arguing that the complainant is more likely to have consented on the occasion in question because she consented in the past, nor is he suggesting that she is less worthy of belief because she engaged in sexual activity with him on past occasions. Rather, he is suggesting that because the manner in which they had sexual intercourse on the date in question was different than usual, he has good reason to remember it in detail. The evidence has some probative value.

E. Prejudicial Effect

[27] The fact that the evidence is not being tendered based on “twin myth” reasoning is not dispositive of the issue of admissibility. Evidence of a complainant’s sexual history is presumptively inadmissible because it is prejudicial. That term is familiar in the criminal law, and is usually used to refer to evidence that carries with it a risk that the trier of fact will engage in a “forbidden line of reasoning,” as in, for example, cases where similar fact evidence may lead a jury to infer guilt from an accused’s general disposition or propensity: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 139.

[28] Evidence of a complainant’s prior sexual history also carries with it the risk of a “forbidden chain of reasoning” based on the “twin myths”: Barton, at para. 220, per Abella and Karakatsanis JJ., dissenting in part. Even where the evidence in question is being used for a legitimate purpose, it may nonetheless be excluded because the risk that the trier of fact will use it improperly is simply too great: R. v. D.M, 2022 ONCA 429, 162 O.R. (3d) 444, at para. 47; R. v. Allen (1999), 120 O.A.C. 154 (C.A.), at para. 16; Handy, at paras. 148-150. This is why the court must undertake a cost-benefit analysis to determine whether the prejudicial effect of the evidence substantially outweighs its probative value: Goldfinch, at para. 69.

[29] The danger of improper reasoning based on discriminatory beliefs is not the only type of prejudice that s. 276 is designed to protect. It also serves to prevent prejudice to a complainant’s dignity and privacy and to ensure that it is respected to the extent possible: Goldfinch, at para. 50; R.V., at para. 68.

F. Cost-Benefit Analysis

[30] Turning to this case, if the Crown intended to argue that the applicant’s claim that he remembers the details of the sexual encounter is inherently implausible because it occurred so long ago, I would conclude that the evidence has significant probative value. However, Crown counsel assures me that he does not intend to make any such suggestion. While he intends to challenge the credibility of the applicant’s account, he does not intend to challenge its reliability. My ruling is based on that assurance. Should the Crown choose to undertake a different tactic at trial, it may be necessary to revisit this ruling.

[31] The applicant is free to explain why he remembers the encounter for reasons that do not resort to evidence of prior sexual history, such as the fact that it was the only sexual encounter after the relationship ended. In my view, it would also be permissible for him to refer to aspects of the encounter itself, since sexual activity that forms the subject matter of the charge is not captured by s. 276.

[32] Based on the foregoing, while I would not conclude that the evidence has no probative value, the probative value that it does have is minimal. To be admissible pursuant to s. 276, evidence has to be “not merely helpful to the defence, but ‘fundamental to the coherence of the defence narrative’”: R. v. O.F., 2022 ONCA 679, at para. 54; Goldfinch, at paras. 66, 119. The evidence in this case does not meet that standard.

[33] With respect to the prejudicial effect of the evidence, given that this will be a judge-alone trial, the danger of impermissible reasoning is significantly reduced: R. v. Nolan, 2019 ONCA 969, 150 O.R. (3d) 647, at para. 44; R. v. J.H, 2018 ONCA 245, at para. 24. [^3] However, the admission of the evidence would cause significant prejudice to the complainant’s dignity and privacy which substantially outweighs its limited probative value.

[34] The application pursuant to s. 276 is dismissed.

III. THE SECTION 278.92 APPLICATION

A. Legislative Framework

(i) “Records” -- Section 278.1 of the Criminal Code

[35] The applicant is in possession of various written communications between the complainant and others which he seeks to rely on at trial. These communications are admissible subject to the ordinary rules of evidence unless they are “records” as defined in s. 278.1 of the Criminal Code, in which case they are only admissible following a successful application pursuant to s. 278.92.

[36] Section 278.1 defines a “record” as “any form of record that contains personal information for which there is a reasonable expectation of privacy.” While the section enumerates a number of types of records, the material in this case does not fall into any of those categories. As a result, whether they are “records” will depend on whether they are subject to a reasonable expectation of privacy.

[37] A reasonable expectation of privacy will exist with respect to any record that “contains information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being” and which will have “implications for the complainant’s dignity”: R. v. J.J., 2022 SCC 28, 471 D.L.R. (4th) 577, at paras. 42-44. The complainant’s privacy interests are to be assessed in light of the competing factors set out in s. 278.92(3), which are discussed below: J.J., at para. 51-52.

[38] In determining whether a reasonable expectation of privacy exists, the court must consider both the content of the record in question as well as the context in which it was created. The content will support a finding that a reasonable expectation of privacy exists where it relates to “information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being”: J.J., at para. 55.

[39] A consideration of context requires a “normative and common-sense approach”: J.J., at para. 57. Among the factors to be considered are why the complainant shared the information in question, her relationship with the person with whom the information was shared, and where and how the record was created or obtained: J.J., at paras. 57-60.

(ii) Sections 278.92 to 278.94 of the Code

[40] If the material in question is not a “record,” then its admissibility will be governed by the ordinary rules of evidence. If it is a “record,” then its admissibility must be determined in accordance with the procedure created by ss. 278.92 to 278.94. That procedure has two stages. Section 278.93(4) provides that in the first stage, the court must determine whether “the evidence sought to be adduced is capable of being admissible.” If it is, then the court must hold a second stage hearing in accordance with s. 278.94. In this case, while the Crown took the position in written materials that some of the evidence did not meet the first stage, Crown counsel did not pursue that submission in oral argument and the application proceeded to the second stage.

[41] At the second stage, the court must determine whether the evidence meets the requirements set out in s. 276.92(2). Where, as in this case, the evidence does not relate to prior sexual activity on the part of the complainant that engages s. 276, s. 278.92(2)(b) provides that it will be admissible if it “is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.”

[42] Section 278.92(3) provides:

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society’s interest in encouraging the reporting of sexual assault offences; (c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; (d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (e) the need to remove from the fact-finding process any discriminatory belief or bias; (f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (g) the potential prejudice to the complainant’s personal dignity and right of privacy; (h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (i) any other factor that the judge, provincial court judge or justice considers relevant.

B. The Parties to the Application

[43] Only the Crown and the defendant have standing at the first stage. Section 278.94(2) provides that at the second stage, the complainant may appear and make submissions. The complainant in this case did so through counsel.

[44] Although she had no statutory right to do so, in the unusual circumstances of this case S.L. was also granted standing and was represented by counsel on the application. The applicant had initially brought an application pursuant to s. 278.3 of the Code for production of certain CAS records. S.L. had standing on that application by virtue of s. 278.4(2), which allows for an appearance and submissions by the complainant as well as “any other person to whom the record relates.” Because that application and the s. 278.92 application were closely related, all parties agreed that it was appropriate for S.L. to be granted standing on the s. 278.92 application as well.

[45] Although the applicant later abandoned the production application, I determined that it was appropriate for S.L. to retain her standing as she has a direct privacy interest in some of the material that is the subject matter of the application. To the extent that it is necessary for me to do so, I grant her intervenor status on this application: R. v. Eurocopter Canada Ltd. (2004), 71 O.R. (3d) 27 (S.C.J.), at paras. 27-28; R. v. Trang, 2002 ABQB 185, 4 Alta. L.R. (4th) 161.

C. The Evidence Sought to be Admitted

(i) E-mails From the Complainant to the Officer-in-Charge and Others (Application Record, tab 4)

(a) Description

[46] On May 3, 2022, after the complainant first made her allegation of sexual assault but before the applicant was charged, the complainant sent an e-mail to Det. Nathan Gibson, the police officer in charge of the investigation. The e-mail was copied to a CAS employee, a senior official at the government agency where the applicant was employed, a medical clinic of some sort, and another individual whose role in this matter is unclear. [^4]

[47] The e-mail is lengthy and touches on a number of topics, including S.L.’s health, criticisms of the applicant’s parenting, allegations that he abused or intimidated S.L., and criticisms of “the system.” At various points, the complainant alleged that several people, including some of the e-mail’s recipients, were improperly protecting the applicant. The complainant’s primary focus throughout the e-mail is her desire to have access to S.L.

[48] At one point in the e-mail, the complainant stated:

And please trust me that I have exhausted all possible ways to deal with this within the family law. This is a criminal matter. The family law does not provide with safety net [sic] in such cases.

At another point, the complainant suggested that she would be unsuccessful in family court proceedings and then pointed out in the same paragraph that Det. Gibson told her that charges would be laid against the applicant. However, the sexual assault allegation is never mentioned in the e-mail.

(b) Reasonable Expectation of Privacy

[49] In my view, the complainant has no reasonable expectation of privacy in relation to this e-mail. She sent it to a number of different people, some of whom had no involvement in either the custody dispute or the investigation into the applicant. She appears to have believed that some of the recipients were the applicant’s allies and adverse in interest to her. There was no basis on which she could have expected all of the recipients to keep the e-mail confidential.

(c) Admissibility

[50] If I am wrong and the e-mail does attract a reasonable expectation of privacy, I would nonetheless admit it. In my view, a consideration of the factors in s. 278.93(2) supports a conclusion that the e-mail has probative value that is not significantly outweighed by its prejudicial effect. The e-mail arguably shows that the complainant believed there to be a connection between the investigation of the applicant and her attempts to gain access to her daughter. It therefore potentially has probative value in relation to the applicant’s theory that she fabricated her allegation because she believed doing so would assist her in gaining access. The alleged motive to fabricate is central to the applicant’s defence. Admitting the e-mail does not engage any type of discriminatory belief or bias, nor is it likely to unduly arouse sentiments or prejudice, sympathy or hostility.

[51] The e-mail contains information about S.L. that is of a highly sensitive and personal nature, although there appears to be some dispute as to whether the information is true. While this does not directly impact the complainant’s privacy rights, I agree with Crown counsel that parents have an interest in their children’s privacy rights and there is a risk that failing to protect the privacy rights of a complainant’s child may discourage other complainants from reporting sexual assault offences. However, there are two reasons why these concerns do not justify exclusion of the evidence in the circumstances of this case. The first is that S.L., who has standing on the application, does not object to the evidence being admitted (although she does not consent to it either). The second is that in my view, the portions of the e-mail that engage S.L.’s privacy interests can be redacted. Counsel are invited to make submissions as to the extent of any such redactions.

(ii) E-mails Between the Applicant and the Complainant (Application Record, tabs 7-10)

(a) Description

[52] The applicant is in possession of a number of e-mail messages between him and the complainant in April 2022 and August and September 2023. They all involve discussions and disputes about the complainant’s access to S.L. as well as her seeking information about S.L.

(b) Reasonable Expectation of Privacy

[53] I am satisfied that the complainant has a reasonable expectation of privacy with respect to these e-mails. The complainant’s purpose in sending the e-mails is primarily to arrange access to her daughter. Although she and the applicant are estranged and have an acrimonious relationship, they are still both S.L.’s parents. The court must take a normative approach, and individuals in a co-parenting relationship ought to feel free to communicate with an expectation that their communications will not be disseminated.

(c) Admissibility

[54] In my view, the e-mails from April 2022, August 2023 and September 16, 2023 have little, if any, probative value. They establish that the complainant wishes to spend time with S.L. and the applicant does not agree to facilitate this on the basis that S.L. does not wish it. The fact that the complainant has a longstanding wish to have access to her daughter that she views as being frustrated by the applicant is relevant, but there is an abundance of other evidence establishing this and it is doubtful that this will be an issue in dispute.

[55] I take a different view with respect to the e-mail from September 9, 2023. While the complainant’s counsel opposes its admission, the Crown accepts that it ought to be admitted. In this e-mail, the complainant demanded that the applicant bring S.L. to the police station to be picked up by her and stated that she “will be seeking the Police’s assistance to retrieve her if you choose not to grant me access to her.” The threat to contact the police at a time when the applicant was facing an outstanding charge has some probative value in relation to the applicant’s theory that the complainant fabricated the allegation in order to assist her efforts to obtain access to S.L. Admission of the September 9, 2023 e-mail would result in little prejudice. While the complainant’s custody and access dispute with the applicant is a personal and private matter, its existence will already be in evidence from other sources.

(iii) Text Messages Between the Complainant and S.L. (Application Record, tabs 11-12)

(a) Description

[56] The applicant seeks to admit a series of text messages that were exchanged between the complainant and S.L. in August 2023. In them, the complainant demanded that S.L. live with her every other week. S.L. refused to do so. The complainant responded that she had no choice in the matter and must do as her parent tells her. At one point, the complainant wrote, “If you are not available for being within the parental control of your parents, then parents go to the Police to retrieve you.”

(b) Reasonable Expectation of Privacy

[57] I accept that the complainant had a reasonable expectation of privacy in relation to this text message exchange. These were communications between parent and child about their relationship. They were of a highly personal nature.

(c) Admissibility

[58] In my view, the text messages have probative value that is not significantly outweighed by their prejudicial effect. The text messages are arguably another example of the complainant’s attempts to involve the police in her efforts to obtain access to S.L. and therefore have probative value in relation to the applicant’s theory of a motive to fabricate. While the subject matter of the texts is highly personal, as noted earlier the fact of the custody and access dispute will already be in evidence. The reason for which the evidence is being admitted does not engage any discriminatory belief or bias. I note as well that S.L. took no position with respect to the admissibility of this evidence.

(iv) ICAD Report of the Complainant’s 911 Call (Application Record, tab 13)

(a) Description

[59] The final piece of evidence the applicant wishes to have admitted is an Intergraph computer-aided dispatch (“ICAD”) report of a call the complainant made to 911 in early April 2022, just prior to when she first made her allegations. It reflects that the complainant called 911 to report that her daughter did not attend school and that she was unable to reach her or the applicant. The applicant’s counsel obtained the ICAD report from the police through a request made pursuant to the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, C. M.56.

(b) Reasonable Expectation of Privacy

[60] In R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 42, the Court stated:

People provide information to police in order to protect themselves and others. They are entitled to do so with confidence that the police will only disclose it for good reason. The fact that the information is in the hands of the police should not nullify their interest in keeping that information private from other individuals.

In my view, this is dispositive of the issue of whether the complainant had a reasonable expectation of privacy in her 911 call. On its face, the call was made because the complainant was concerned about being unable to reach her daughter, and she was entitled to make the call with confidence that it would not be disclosed without good reason. The fact that the applicant had to make a freedom of information request to obtain the material supports this conclusion.

(c) Admissibility

[61] The ICAD report contains allegations that the applicant threw dishes at S.L., but she also stated that there was “no physical abuse known.” By the end of the call, it appears that S.L. was on her way home and the complainant’s concerns had been addressed. In my view, the prejudice to the complainant’s privacy interests substantially outweighs what little probative value this evidence may have.

D. Conclusion

[62] Based on the foregoing, the following items are admissible:

• the May 3, 2022 e-mail from the complainant to the officer-in-charge and others (Application Record, tab 4);
• the September 9, 2023 e-mail from the complainant to the applicant (Application Record, tab 9);
• the text messages between the complainant and S.L. (Application Record, tabs 11-12).

[63] The following items are not admissible:

• the e-mail between the applicant and the complainant, other than the e-mail from September 9, 2023 (Application Record, tabs 7, 8, 10);
• the ICAD report (Application Record, tab 13).

[64] Nothing in this ruling should be taken as expressing any conclusion about the facts of this case, including whether the complainant had a motive to fabricate her allegation. Such conclusions can only be made after all the evidence is heard and counsel have had an opportunity to make submissions.

IV. MEASURES REQUESTED BY S.L.

A. Overview

[65] As noted, S.L. was granted standing on the s. 278.92 application and took no position with respect to the admissibility of the evidence in question. However, through her counsel, she requested that the court make two orders to protect her privacy: (1) an order banning publication of her identity; (2) an order sealing any of the material that was the subject of the s. 278.92 application which makes reference to her and which is subsequently made an exhibit at trial.

B. Publication Ban

[66] With respect to the first request, an order has been made pursuant to s. 486.4(1) banning publication of any information that could identify the complainant. Since S.L. is the complainant’s daughter, identifying her could have the effect of identifying the complainant, so that order in effect bans publication of any information that could identify S.L. as well.

[67] To the extent that it is necessary to do so, I also make an order pursuant to s. 486.5(2) directing that any information that could identify S.L. shall not be published in any document or broadcast or transmitted in any way. In my view, S.L. meets the definition of a “justice system participant” as defined in s. 2 of the Criminal Code. Although no party currently intends to call her as a witness, she has personal knowledge of some facts relevant to the charge and is therefore a “prospective witness.” [^5]

C. Sealing Order

[68] S.L.’s request to seal exhibits is arguably premature as it is not clear that any of the material will be made exhibits. However, in the event that they are, I am prepared to make a sealing order with respect to any material in which S.L. has a direct privacy interest. This information includes intimate and personal details about S.L. the dissemination of which would have an adverse effect on her dignity: Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at paras. 71-76.

D. Notice to the Media Not Required

[69] In the circumstances of this case, I am exercising my discretion not to require notice to the media of the measures being requested by S.L., which would otherwise be required pursuant to s. 109 of the Court’s Consolidated Practice Direction (2014). I do so based on the strong privacy interests at issue, S.L.’s age, my intention to provide a description of any relevant information in my reasons for judgment at trial, and the limited public interest in this matter: Anjayi (Litigation guardian of) v. Miller, 2023 ONSC 6246, at para. 21; WA.C. v. C.V.F., 2021 ONSC 6894, at para. 270.

V. DISPOSITION

[70] The application pursuant to s. 276 of the Criminal Code is dismissed. The application pursuant to s. 278.92 is granted in part in accordance with these reasons.

Justice P.A. Schreck

Released: April 18, 2024

Footnotes

[^1]: Applicant’s Factum, at paras. 40, 47. [^2]: Respondent’s Factum, at para. 9. [^3]: At the time the s. 276 application was argued, the applicant had elected trial by jury. He has since re-elected to be tried by a judge alone. [^4]: These individuals are identified in the communication. However, identifying them in these reasons may have the effect of identifying the complainant. [^5]: I make this order on my own motion without having heard submissions by the parties because no party objected to S.L.’s requests. Should any party take issue with my jurisdiction to make this order or the propriety of doing so, I am prepared to revisit it.