R v SC, 2025 ONSC 1516

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R v SC, 2025 ONSC 1516

COURT FILE NO.: CR-24-39-0000

DATE: 2025 03 07

B E T W E E N:

His Majesty the King

A. Stevenson, M. Chant, for the Crown/Respondent

Respondent

• and -

SC

M. Muia, for the Applicant

Applicant

HEARD February 24, 2025

RULING ON MOTION FOR DIRECTIONS RE: S. 276,

AND APPLICATION UNDER S. 278 (Stage 1)¹

C. Chang J.

1The applicant moves for directions respecting the applicability of s. 276 of the Criminal Code, R.S.C. 1985, c. C46 to these proceedings, and applies under s. 278.92 of the Criminal Code for a determination of the admissibility of certain Instagram chat messages between one of the complainants, JB, and the applicant’s sister, DL.

2The applicant has been charged with various offences related to, among other things, sex trafficking, fraud, assault, and gun possession involving three complainants: JB, LS, and SC. The judge-alone trial is scheduled to proceed on May 12, 2025 for three weeks.

3This motion and application relate only to those charges involving JB.

ISSUES

4The issues for determination on this motion and this application are as follows:

a. Does s. 276 of the Criminal Code apply to this proceeding?

b. Are the Instagram chat messages between JB and DL admissible as evidence at trial under s. 278.92(2) of the Criminal Code?

ANALYSIS

Issue: Does s. 276 of the Criminal Code apply to this proceeding?

Parties’ Positions

5The applicant submits that s. 276 is not applicable to this proceeding. He argues that s. 276 is “categorically” inapplicable to the offences with which he has been charged because none is enumerated in that section of the Criminal Code. He also argues that there are no allegations that he, through violence or the threat of violence, compelled JB to offer sexual services; therefore, there is no basis to believe that she was incapable of consenting to providing those services, or that any such consent given was vitiated.

6The Crown submits that s. 276 does apply to this proceeding. It argues that the sexual/sex trafficking aspects of the applicant’s and JB’s relationship cannot be divorced from that relationship’s violent/threatening aspects. It further argues that the totality of JB’s evidence demonstrates that the sexual/sex trafficking aspects of her relationship with the applicant were imbued with aggression and fear.

Decision

7For the reasons set out below, I find that the issue of the applicability of s. 276 to this proceeding is not ripe for judicial determination, and this motion for directions must therefore be dismissed.

8Absent a live controversy with a sufficient factual foundation, a matter is not ripe for judicial determination: it is not justiciable (see: Marmora and Lake (Municipality) v Ontario, 2025 ONCA 10, at para. 9). The hypothetical nature of the issue, not necessarily the lack of occurrence of a certain event, offends the ripeness doctrine (see: The Corporation of the Municipality of Marmora and Lake v His Majesty the King in Right of Ontario, 2024 ONSC 2254, at para. 132).

9As the applicant has not brought an application under s. 276(2) of the Criminal Code, I am unaware of the existence of any evidence of JB’s other sexual activity that the applicant seeks to have admitted at trial. If there is such evidence, does it fall under the prohibition in s. 276(1)? If it does not fall under that prohibition, does the evidence satisfy the conditions for admissibility set out in s. 276(2)? There can be no answers to these questions because the court is being asked to determine the applicable issue by answering a hypothetical question with no factual foundation.

10The issue posed on this motion is therefore not justiciable, and I am neither permitted nor prepared to determine it.

11If there is evidence that may fall within the purview of s. 276 and that the applicant wishes to adduce at trial, he is required to bring the appropriate application, and the determination of s. 276’s applicability should properly be left to that application.

12This motion for directions must therefore be dismissed.

Issue: Are the Instagram chat messages between JB and DL admissible as evidence at trial under s. 278.92(2) of the Criminal Code?

Parties’ Positions

13The applicant submits that the subject chat messages are not “records” to which the s. 278.92 regime applies. He argues that those messages do not contain personal information for which JB has a reasonable expectation of privacy, or information of a sexual nature that could engage so-called “twin myth” reasoning.

14In accordance with the procedure set out in R v A.M., 2020 ONSC 1846, at para. 70, the applicant has, in his application materials, provided to the Crown descriptions of the subject messages, but not the messages themselves. He provided copies of the messages to the court via a password protected .pdf document, which was marked as a sealed lettered exhibit to the application hearing. The Crown did not object to the application proceeding in this fashion, subject to it being provided with the messages if I found them to constitute records within the meaning of s. 278.1 of the Criminal Code. However, not knowing exactly what the chat messages contain, the Crown has no direct submissions on whether they are “records” within the meaning of s. 278.1.

Decision

15For the reasons set out below, I find that the subject chat messages are not records within the meaning of s. 278.1 of the Criminal Code, and therefore no determination of their admissibility under s. 278.92(2) is required.

16As held by the Supreme Court of Canada in R v J.J., 2022 SCC 28, at para. 38, there are two types of records that fall within the purview of s. 278.1: those that fall into one of the enumerated categories, and those that do not “but otherwise contain personal information for which there is a reasonable expectation of privacy”. The latter type of record will only be captured by s. 278.1 if it “contains information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological, or emotional well-being…[and has] implications for the complainant’s dignity” (see: J.J., at para. 42).

17Having viewed the subject chat messages, I accept the applicant’s argument that they are neither records that fall into an enumerated category in s. 278.1 nor ones that contain information for which JB has a reasonable expectation of privacy. The messages do not contain information of an intimate or highly personal nature that is integral to her overall physical or emotional well-being, or have implications for her dignity.

18Therefore, the subject chat messages are not records within the meaning of s. 278.1 of the Criminal Code.

DISPOSITION

19For the reasons set out above, the applicant’s motion for directions is dismissed, and a determination under s. 278.92(2) of the Criminal Code respecting the admissibility of the Instagram chat messages between JB and DL is not required.

C. Chang J.

Footnotes

1. 1[1] I delivered these reasons orally in court on March 6, 2025. During that oral delivery, I omitted headings, citations, and endnotes, and reserved the right to subsequently edit these reasons for, among other things, structure, grammar, and style. I also advised that, to the extent of any difference between the orally delivered and written versions of these reasons, the written version shall govern.