WARNING The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 278.91(1) of the Criminal Code:

(i) (ii) Publication prohibited 278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following: o (a) the contents of an application made under section 278.3; o (b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or o (c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published. (iii) Offence (2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

BARRIE COURT FILE NO.: CR-23-118-00 DATE: 20240906

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – B.W. Applicant

Counsel: Linsay Weis, for the Crown Applicant, Self-Represented s.486 Counsel: Hubert Gonzalez and Allan Lobel

HEARD: August 28 and 29, 2024

REASONS FOR DECISION ON APPLICATION FOR DIRECTION

HEALEY, J.:

Nature of the Application

[1] The Applicant has brought an application for directions. The Notice of Application seeks a ruling that emails in the possession of the Applicant are not records as defined by s. 278.1 of the Criminal Code, and an order permitting the Applicant to use the contents of those emails to cross-examine the complainant.

Procedural Background

[2] The procedural background to this Application is that on January 12, 2024, Mr. Lobel was appointed as s. 486 counsel. He participated in a second pretrial before Justice Fuerst four days later. A trial date had already been scheduled for September 2024 at the first pretrial, which was held in December 2023.

[3] At the time of the second pretrial on January 16, 2024, two “records” applications were contemplated: one for production of CAS records and the other for email correspondence. The pretrial report notes that Mr. Lobel participated in this discussion; the pretrial report states that “Mr. Lobel as s. 486.3 counsel will bring the application for both the emails and the CAS records. …”.

[4] Justice Fuerst directed that there would be a records deposit date of June 17, 2024 and the applications would be argued on June 27 and June 28, 2024. She ordered that the application materials be filed by May 6, 2024 and responding materials by June 10, 2024 on everything (which she underlined) for the records issue.

[5] On June 11, 2024, Justice Fuerst revised the application dates, with Mr. Lobel and the Applicant both in attendance. The records deposit date was changed to July 8, 2024. Her endorsement reads:

all motions relating to CAS records and emails including a production application of the CAS records, an application for directions in regard to email records, and a use application under s. 278.94 will take place during the week of August 26, 2024 at 9:30 a.m. that is in place. Presiding judge will direct the sequence of the hearing of the various applications.

[6] The original trial date had been vacated because of a civil trial blitz scheduled for September 2024, and a new trial date was scheduled for November 4, 2024 for one week with a jury.

[7] The endorsement from June 11, 2024 also states that “the discussion about DSF evidence the Crown wishes to use shall take place that week as well”: referring to R. v. F. (D.S.), (1999), 132 C.C.C. (3d) 97 (Ont. C.A.). This statement refers to the fact that at one of the pretrials, Crown counsel indicated an intention to introduce prior disreputable conduct evidence, as outlined in the synopsis. The pretrial report indicates that the defence was not contesting the admissibility of that evidence.

[8] There is no indication from the endorsement of June 11, 2024 that the applicant or Mr. Lobel raised any questions or concerns about the issue of the proposed discreditable evidence on that day, including any procedural issues.

[9] The defence application under s. 278.3 for production of the CAS records and related material was before the court on Monday, August 26, 2024. It is not known when the application material was served, but late service was not raised as an issue. Mr. Lobel was ill that day and requested, via email to the Crown, complainant’s counsel and the trial coordinator, that the matter go over to Wednesday, August 28, 2024. The court granted that request, setting the hearing for 2:15 p.m.

[10] However, Mr. Lobel seems to have only recently turned his mind to the other contemplated application concerning the emails. On August 28, at 9:30 a.m., Mr. Lobel sent an email to the trial coordinator that reads:

Thank you.

Please provide the attached documents to Justice Healey.

Please note that the subject documents to the NOA Motion for Directions will be provided directly to Her Honour in court by Mr. Gonzalez.

I will upload the NOA and the attached cases to Caselines shortly.

[11] The email attached a Notice of Application for Directions, four cases and a document titled “summary of materials”.

[12] The trial co-ordinator forwarded that email to me later on Wednesday morning.

[13] Upon court commencing on Wednesday afternoon, I indicated to counsel that before contemplating what to do with the application that had arrived in my inbox that morning, I would be hearing arguments on the s. 278.3 application first. The s. 278.3 application was heard that afternoon and dismissed by this court with reasons to follow.

[14] The date on the Notice of Application for directions is August 26, 2024. The material was served on the Crown and Ms. Mazgarean, counsel to the complainant, on August 28, 2024.

[15] The grounds for the application are: “That the emails provided are not records as defined by s. 278.1 of the Criminal Code”.

[16] Although the application for directions seeks an order permitting the emails to be used to cross-examine the complainant:

(a) there is no reference to s. 278.92 of the Code; (b) no reference to whether any of the emails may be subject to s. 276 of the Code; (c) does not set out detailed particulars of the evidence that the accused seeks to adduce nor the relevance of that evidence to an issue at trial as required by s. 278.93(2); and (d) was not served on the Crown or delivered to the clerk of the court at least seven days previously Sending a document to the trial coordinator and asking that it be forwarded to the presiding judge does not constitute filing, nor does uploading to Case Center.

[17] With respect to (c) above, Mr. Lobel did provide a summary of the materials to the Crown and the court, in which he stated that the email communications do not include references to information for which the complainant would have a reasonable expectation of privacy. The summary states that the emails involve communications between the Applicant and the complainant between May 15, 2013 and November 28, 2016, and that the communications are about childcare, getting together for social time, with or without the children, shopping, addressing budgeting and spending, and the application for a new apartment. It further states that the emails contain mundane information such as general emotional states, everyday occurrences, or general biographical core information that would not give rise to a reasonable expectation of privacy.

[18] No explanation was given for how the emails came to be in the Applicant’s possession, i.e., whether they were taken from one of the Applicant’s personal devices or retrieved through another source.

[19] The Crown invited this court to dismiss the Application without consideration due to late service. Ms. Mazgarean could make no comment other than that she could not possibly get instructions from her client given the late service.

[20] I decide to proceed in camera strictly with the threshold question of whether the emails were records, a preliminary step in which the complainant has no right of participation: R. v. A.M. 2020 ONSC 1846, at para. 70. The emails were marked as Exhibit A and reviewed by the court to determine the threshold question. The numbering system used below references the page number on the bottom righthand corner of the documents in Exhibit A.

[21] Exhibit A also contained a document called “Overview”, which explains that the defence’s intended use of the emails is for impeachment if the complainant’s testimony attempts to characterize her marriage in a manner that invites impeachment. Although a copy of the summary had been given to Ms. Weis for the purpose of allowing her to make submissions, the overview had not been provided to her.

[22] Court resumed on August 29, at which time the following ruling was delivered, with written reasons to follow:

1. This court orders that the following emails are not records as defined by s. 278.1 of the Code: 1, 2 (top two emails sent July 3, 2015 at 12:32 and July 2 at 14:29), 4, 7, 10, 14, 15 (bottom three emails dated April 4, 2016), 16 to 22 inclusive, 23 (bottom email sent May 2, 2016 at 12:51), 26, 28, 29 (duplicate of 28), 33 (bottom two emails sent September 27, 2016 at 3:53 and 4:22), 34 and 35.

2. This court orders that the following emails are records as defined by s. 278.1 of the Code: 2 (bottom two emails sent July 2, 2015 at 3:46 and 9:18), 3, 8, 9, 12, 13, 15 (top email sent April 5, 2016 at 5:25 a.m.), 23 (top email sent May 2, 2016 at 5:04 a.m.), 25, 27, 30, 31, 32, and 33 (top email sent September 27, 2016 at 7:55 p.m.).

3. This court orders that the request by the Applicant to use the emails that are records is dismissed for non-compliance with s. 278.93 and the orders made by this court.

4. This court orders that the request by the Applicant to use the emails that are not records for the purpose of cross-examination of the complainant is granted subject to: (a) a s. 276 application for two of the emails; and (b) other rules of evidence such as determinations of relevance, or where the probative value of the evidence is outweighed by its prejudicial effect. This will be determined as the trial unfolds and this ruling does not limit the Crown from raising objections to the use of the emails as necessary.

5. The emails that may be captured by s. 276 are those on pages 6 and 24 of Exhibit A.

6. This court orders that if the Applicant seeks to use those emails on pages 6 and 24, an application and factum shall be served and filed by September 30, 2024, and any responding material from the Crown by October 18, 2024. Mr. Lobel shall advise the Crown by September 6, 2024 as to whether an application will be brought under s. 276.

7. This court orders that the Crown shall serve a factum outlining the precise evidence that it intends to rely on as prior discreditable conduct by September 30, 2024 and any responding factum from [B.W.] shall be served and filed by October 18, 2024.

8. Both of these issues, if necessary, shall be heard by the court immediately following jury selection on November 4, 2024.

[23] The reasons for these rulings now follow.

Records

[24] A “record” is defined in s. 278.1 as:

any form of record containing personal information “for which there is a reasonable expectation of privacy”, and which is not made by persons responsible for the investigation or prosecution of the offence, including:

“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”.

[25] As explained in R. v. J.J., 2022 SCC 28, 471 D.L.R. (4th) 577, at para. 38, the definition of “record” creates two distinct groups: enumerated records that fall within the enumerated categories, and non-enumerated records, which are not captured in the enumerated categories, but which otherwise contain personal information for which there is a reasonable expectation of privacy.

[26] The Court concluded in J.J., at para. 42, that a non-enumerated record will only be captured by 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.” At para. 56, the Court states that “mundane information such as general emotional states, everyday occurrences or general biographical information would typically not give rise to a reasonable expectation of privacy.”

[27] The Court recognized, at para. 45, that complainants have privacy interests in highly sensitive information about themselves, the disclosure of which can impact on their dignity. To reach the level of an impact on dignity, the intrusion on informational privacy must “transcen[d] personal inconvenience by reason of the highly sensitive nature of the information that might be revealed”: J.J., at para. 45, citing Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R 75, at para. 75.

[28] To determine whether a record contains information that would be captured by s. 278.1, the presiding judge must consider the content and context of the record: J.J., at para. 54.

[29] With respect to content, if the non-enumerated record contains content similar to that which would be contained in an enumerated record, such fact is a useful indicator that it raises significant privacy concerns: J.J., at para. 55.

[30] With respect to context, the presiding judge must consider the context in which the record came into existence. In doing so, the court may consider the reason why the complainant shared the information in question, the relationship between the complainant and the person with whom the information was shared, and where the record was shared or how it was created: J.J., at paras. 58-60.

[31] At para. 60, the Court also noted that records that are created in the private domain, such as one-on-one communications between the complainant and accused, may attract an enhanced reasonable expectation of privacy over records created or obtained in the public domain.

[32] I will discuss context first. The emails are communications directly between the Applicant and the complainant. No other individuals are copied on or included in the email communications. The emails cover a period from May 15, 2013 to November 28, 2016. As I know from the evidence filed for the s. 278.3 application, the complainant and the Applicant were having marital difficulties during at least some of that period, were attending marital counselling and separated in 2016. They were granted a divorce on July 4, 2017, and so had to have been separated for at least a year prior to that date.

[33] I disagree with the characterization in the “summary of materials” of the subject matter of the emails. Some of the emails do contain mundane exchanges about childcare, parenting issues, getting together for social time, simple greetings or “checking in” from the complainant to the Applicant. These communications were found not to be records as defined by s. 278.1.

[34] In contrast, some of the emails address the state of the marriage and the problems within it. They do not simply reference general emotional states, such as “I was happy today when...”. They reference very personal thoughts and feelings about themselves and one another in the context of a private and intimate relationship. Several emotionally-charged exchanges take place, and personal thoughts revealed. From the circumstances, it can be inferred that the intention was to keep those emails out of the public eye. Some that are authored by the complainant are self-deprecating, though not in a humorous way. While not limited to the complainant, the complainant records her private and personal thoughts about her marriage, herself and the Applicant. Even reading them felt like a gross intrusion on the complainant’s privacy, akin to reading her personal journal or diary.

[35] While certainly not a general rule, it is my view that communications between spouses whose marriage is at peril or disintegrating and who are revealing personal thoughts and feelings about that life transition have a very high expectation of privacy in those exchanges. It can usually be inferred, in such circumstances, that the objectively reasonable expectation would be that the communications remain private. The emails that I have identified as records are of an intimate and highly personal nature containing information that is integral to the complainant’s psychological or emotional well-being.

[36] There is another topic broached from time to time in the communications that have been identified as records, which also is of a highly personal nature. Revealing it would have implications for the complainant’s dignity and her privacy, rising above mere inconvenience. These are references to her financial status and ability to manage finances, as well as to specific personal financial information.

Use of Records

[37] For the emails that have been determined to not fall within the scope of a “record”, the statutory regime set out in sections 278.92 to 278.94 does not apply, and issues of admissibility must be determined in the ordinary course.

[38] As Ms. Weis has not received the emails, as is proper at this stage, she has had no real ability to consider her position in respect of them. As the trial unfolds, proper objections based on relevance and any other rules of evidence will be permitted as in the usual course.

[39] It was recognized by Mr. Gonzalez that the application was served late. He submitted that this was because Mr. Lobel had been ill for several weeks leading up to the week of August 26. That submission in no way explains why the application was not served, as ordered, by May 6, 2024. The emails have existed for years, were in B.W.’s possession and referenced at the pretrial on January 16, and Mr. Lobel had from the time of that second pretrial until May 6 to examine them and prepare an application.

[40] Mr. Gonzalez suggested that the default could be cured by finding new dates for a hearing under s. 278.94 if a decision was made by the court to hold such a hearing. This would of course require the availability of Ms. Mazgarean, Ms. Weis, Mr. Lobel or Mr. Gonzalez, and myself. The trial date is November 4, 2024, slightly over eight weeks from now. During that period there is a civil blitz scheduled for five weeks, in which I will be presiding over civil trials. The balance of the weeks are fully scheduled.

[41] There is a reason why Justice Fuerst and other pretrial judges so carefully and methodically put in place timelines for service of material. There is a reason why application dates are scheduled months ahead, which is both to allow ample time for preparation, and due to the extreme constraints on the court’s scheduling of judicial time. It is to avoid exactly the situation that Mr. Lobel has created, without plausible explanation. He was present at the pretrial on January 16, 2024 when these applications were discussed in detail, and a process ordered. He has not offered any reasonable explanation to the court or opposing counsel for the late service of this application for directions.

[42] Apart from the non-compliance with filing deadlines, the application does not meet the requirements of s. 278.93(2) or (4). As previously indicated, nowhere in the application nor the summary is there an indication of the relevance of the evidence to an issue at trial. The application does not even seek, in the alternative, a hearing if some or all the emails were found to be records as defined in the Code. The application was not provided to the Crown or the court at least seven days in advance, and there is no basis in the interests of justice to shorten that period. Allowing the matter to proceed to a hearing, even if the requirements of s. 278.93(2) had been met, would have compromised all participants. It would almost certainly lead to an adjournment of the trial, beyond the identified Jordan date, due to the lack of available dates in the court’s calendar on which to re-schedule the time that has been squandered.

[43] As I am not satisfied that the application was made in accordance with the requirements set out in the Code, I ordered that it be dismissed.

Section 276 Application

[44] On review of the emails, two were identified by me as potentially containing evidence of the complainant’s sexual activity. These would require the conditions for admissibility to be met under s. 276(2) of the Code before they could be adduced at trial.

[45] For the purposes of s. 276, “sexual activity’ includes any communication made for a sexual purpose or whose content is of a sexual nature. Section 276 applies to evidence of other sexual activity that takes place after the events giving rise to the charges and applies to evidence that the Applicant and the complainant were in a spousal relationship involving regular consensual sexual intercourse: R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71, at paras. 81 and 99.

[46] The emails in question could, in my view, be interpreted by a jury as a communication made for a sexual purpose, during the time that the Applicant and complainant’s relationship was intact, and potentially after the incidents alleged giving rise to the charges. They should not be adduced without first being put through the filter of s. 276.

[47] There shall be strict compliance with the service deadlines in this ruling.

Prior Discreditable Conduct

[48] As submitted by Mr. Gonzalez, the Applicant completed his Form 17 for the first judicial pretrial held in December 2023 before Mr. Lobel became involved. The Applicant did not appreciate the significance of indicating that he would not object to the admission of prior discreditable conduct. Mr. Gonzalez advised the court that its significance has now been explained to the Applicant, and that he wants to change his position. The Applicant asks that the Crown be required to bring a formal application.

[49] Despite the poor timing of this request, its subject matter is of considerable significance to the conduct of the trial and to the Applicant’s right to a fair trial. I find that it is in the interests of justice that he be given an opportunity to fully consider the Crown’s position and make submissions to the court before a decision is made about the admissibility of such evidence. Accordingly, I have directed that a detailed factum be served by the Crown, with the Applicant (or Mr. Lobel, if the scope of his retainer permits) to be allowed to serve a response.

[50] There shall be strict compliance with the service deadlines in this ruling.

Madam Justice S.E. Healey Released: September 6, 2024