R. v. Nirlungayuk, 2021 NUCJ 8

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Nirlungayuk, 2021 NUCJ 8 Date: 20210209 Docket: 18-19-166 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Noah Nirlungayuk ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): E. Baasch Counsel (Accused): M. Eaton-Kent Location Heard: Iqaluit, Nunavut Date Heard: October 16, 2020 Matters: Decision on motion for direction respecting

section 278.1 of the Criminal Code of Canada, RSC 1985, c C-46 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” I. INTRODUCTION [ 1 ] The accused is charged with sexual assault. This decision relates to the procedure to be followed when the accused is in possession of text messages from the complainant and wishes to use those text messages at trial. [ 2 ] This application involves three text messages.

One of the text messages in the possession of the accused implies sexual activity of the complainant with a third person and is subject to s. 276(2), requiring a hearing at which the complainant can participate. That text message is not the subject of this decision. [ 3 ] The remaining text messages do not fall within the definition of “sexual activity” as defined by s. 276(4) of the Criminal Code , and accordingly are not governed by the procedure set out in s. 276 of the Criminal Code . The relevant provisions are s. 278 of the Criminal Code and in particular s. 278.92 . II.

THE LEGISLATIVE REGIME [ 4 ] The 2018 amendments to s. 278 are the latest in various developments in rape shield legislation designed to ensure that fact finders do not rely on stereotypes or myths about sexual assault and to protect the dignity and privacy of complainants. [ 5 ] The most recent amendments address the use of “records” that are in the possession of the accused and which the Defence wishes to adduce as evidence at the trial. [ 6 ] The relevant provisions are: 278.1 For the purposes of sections 278.2 to 278.92, “record” means 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. [ 7 ]

Section 278.92 states that records in the possession of the accused are presumptively inadmissible unless they are determined to be admissible in accordance with the procedure set out in s. 278.93 and 278.94.

[ 8 ]

Section 278.93 requires the Defence to make an application in writing to have the evidence admitted. The application must set out the particulars of the evidence and its relevance to an issue at trial. The application must be filed with the court and provided to the Crown with seven days’ notice. A judge then determines if the evidence is capable of being admissible and if so, the matter proceeds to a hearing under s. 278.94. [ 9 ]

Section 278.94 provides for a hearing to determine whether the evidence is admissible or not. The complainant is given notice of this hearing and has the right to participate and be represented by counsel. The complainant is not a compellable witness at the hearing. III. ISSUES [ 10 ] The issues that are to be determined in this matter are: is there a screening process prior to the application of s. 278.93 and 278.94 to determine if the documents sought to be adduced are “records” within the definition of s.278.1, and therefore subject to the hearing process; if the answer to #1 is yes, what is that process? IV.

BACKGROUND [ 11 ] The Defence has filed a “Motion for Direction”, seeking a preliminary ruling by the Court as to whether the text messages are “records” as defined in s. 278.1 of the Criminal Code . The text messages have been provided to the Court and are under seal. They have not been provided to the Crown; however, a

summary of them has been provided. The complainant has not been given notice of this application. [ 12 ] The Crown submits that the procedure followed by the Defence is not correct. She submits that there is no process known as a “Motion for Direction”.

She submits that the Court must follow the process set out in s. 278.93 and 278.94, which requires that the Crown be provided detailed particulars of the evidence to be adduced, the court to make a preliminary determination as to whether the documents are capable of being admissible and, if so, that a hearing proceed under s. 278.94, with notice to the complainant. [ 13 ] The Crown further submits that the determination as to whether the communications are “records” for the purposes of s. 278.1 should be made not on the basis of the content of the communications, but rather on whether they fall into a category of communications that are protected by the section.

V. THE JURISPRUDENCE [ 14 ] The new legislative provisions have been the subject of much litigation. [ 15 ] While much of the litigation has dealt with the constitutional validity of the new provisions, there has also been much litigation as to the procedural requirements of the provisions. A. British Columbia [ 16 ] The case of R v RMR , 2029 BCSC 1093 , was an early case dealing with the new provisions. Defence Counsel sought to adduce text messages between the complainant and the accused. The court considered, as a preliminary matter, whether the text messages fell within the definition of “records”.

The complainant was granted standing at the determination of this threshold issue. The court held that text message communications between a complainant and an accused are, as a category, records for the purposes of s. 278.1 (see para 36). [ 17 ] In R v JJ , 2020 BCSC 29 (leave to appeal to the SCC granted) the court considered the constitutional validity of the legislation and struck down the seven-day notice provision, finding that because it required an accused to disclose Defence strategy prior to the Crown

closing its case, it violated the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, pursuant to s. 7 of the Charter . B. Alberta [ 18 ] In the case of R v McKnight , 2019 ABQB 755 , the Defence brought an application for directions on whether certain electronic communications were records and engaged s. 278.92. The Defence did not provide the court with the electronic communication.

The court based its decision on the type of communication, separating the communications into three categories; those from the complainant to the accused, those from the complainant to a third party who forwarded them to the accused, and those from the complainant to a third party, which the complainant also provided to the Crown. The court held that those in the first two categories were records and subject to s. 278.

Those in the third category were not as the complainant disclosed them to the Crown and, accordingly the accused, during the proceedings. [ 19 ] The court in R v Navia , 2020 ABPC 20 , took a different approach. The electronic communications under consideration were emails between the complainant and the accused. The Defence provided the Crown with copies of the emails on the eve of trial.

Finding that the Criminal Code did not set out a procedure to address the threshold issue of whether a communication is a record, the court endorsed the bringing of a preliminary application on the issue and decided that the complainant should not have standing at that stage. The court also decided that either the communications in question or a detailed

summary of them should be before the court. The court acknowledged that in some circumstances the type or category of document is indicative of the information the document contains, permitting the court to decide whether the document attracts a reasonable expectation of privacy without viewing the document. C. Nova Scotia [ 20 ] In R v SL , 2019 NSSC 408 , the court made an initial determination, without notice to the complainant, that certain communications were not records for the purposes of s. 278.

It seems that the court had the communications before it, as it was able to determine that “...the content of the recording in this case is not overly sensitive and the impact on the privacy interest if disclosed is minimal” (para 15). [ 21 ] In R v Whitehouse , 2020 NSSC 87 (March 3, 2020) the court considered a challenge to the legislation on the grounds that it violated ss. 7 and 11 of the Charter . The court found the legislation to be valid.

The reasons are relevant to the issue before me as the Crown in Whitehouse endorsed the procedure set out in R v WM , 2019 ONSC 6535 and argued that if an accused were in doubt whether the communications fell within the definition of records set out in the section, it was open to him to ask the trial judge to make that determination before trial (see para 11). [ 22 ] A reading of the case suggests that the availability of this procedure weighed significantly in the court's determination that the legislative provisions are valid. The court stated: ...one of the accused's primary concerns is the

interpretation of the definition of record and whether the messages are captured by the definition of record. The

interpretation of “record” is a problem with the application of the legislation and not the constitutionality of the legislation itself. (at para 44) [ 23 ] The court concluded by setting out the procedure to be followed to determine if evidence falls under the definition of “record”. It stated: [53] If the accused is required to give the complainant notice of the evidence that he intends to use on cross-examination and it is found that the evidence does not fall under the definition of “sexual activity” or “record”, the accused will have unnecessarily given the evidence to the complainant.

Here, the accused is unsure whether the messages between the complainant and the accuse or the complainant and third parties will be found to be sexual activity or a record. In such a situation the accused's choices are: (

a) make a pre- trial application to admit the evidence and give details of the evidence to the complainant, or (

b) wait until cross-examination of the complainant and if there are perceived contradictions, make an application to adduce the evidence at that time. [54] If the application is made in the middle of cross-examination, the accused takes the risk that the application will not be allowed as the application was not disclosed at the pre-trial conference. If the application is permitted to proceed, the trial process will be disrupted

by an adjournment to allow notice to the complainant and consultations with counsel. [56] The solution in this case is for the accused to apply to the trial judge, prior to the actual application, to determine whether the evidence is evidence of sexual activity or which falls under the definition of record. This was done in R v MS , 2019 ONCJ 670 and R v Ekhtiari , 2019 ONCJ 774 . The evidence is not given to the Crown or the complainant, as that would defeat the purpose of the legislation. D.

Saskatchewan [ 24 ] In R v Anderson , 2019 SKQB 304 the court found the provisions unconstitutional, breaching s. 7 and 11 Charter rights of the accused by requiring disclosure of Defence strategy and undermining the right to effective cross-examination. The court did not consider a process of pre-application determination by the court as to whether the communications came within the definition of “records”. E. Yukon [ 25 ] In R v DLB , 2020 YKTC 8 the court found s. 278.92 to be unconstitutional.

The court considered whether a “halfway” position such as that taken by the court in JJ (striking down the seven-day notice provision) was a workable solution to render the provisions constitutional and concluded it was not. F. Ontario [ 26 ] In the case of R v WM , 2019 ONSC 6535 , the court addressed the procedure to be followed in determining whether s. 278 was applicable. The communication in question was provided to the court and sealed. The Crown was provided with a

summary of the communications, including, the parties to the communication, the platform, the source of the communications (i.e. how it came to be in the possession of the accused), the dates of the communications, and confirmation that the communications did not constitute sexual activity.

The court concluded this procedure is similar to that used in other circumstances where counsel is not sure if information should be disclosed, such as where there are claims of privilege or confidential informants. [ 27 ] The procedure set out in WM has been adopted in Ontario ( see: R v Mai , 2019 ONSC 6691 ; R v AM , 2020 ONSC 1846 ; R v White , 2020 ONSC 1808 ). [ 28 ] As can be seen, overall, the jurisprudence to date protects the rights of the accused by either striking down the legislation or invoking a procedure which protects those rights. VI.

ANALYSIS [ 29 ] Whether the cases are dealing with a constitutional challenge to s. 278.92 or the procedure to be followed in relation to such documents, the issues are the same: the impact of prior disclosure of evidence by the Defence on the right of the accused to remain silent, to not be required to self-incriminate, and to full answer and defence, all protected by s. 7 and 11 of the Charter; and how to balance those interests against the privacy interests of complainants. [ 30 ] The approach urged by the Crown, to determine the issue on the basis of the type of communication rather than the content of the communication is, in my view, problematic. [ 31 ] The enumerated categories of documents set out in s. 278.1 are, by their very nature, private.

Medical information, counselling information, child protection information, etc., is information that is not only provided and gathered with an expectation of privacy, much of it is protected by privacy legislation. It is confidential because of the nature of the information which is being provided and

gathered. The nature of that information can be determined by the person or agency to whom the information is provided and the context within which it is provided. While it is true that not all information provided to such persons or agency will be confidential, the bulk of it will be. [ 32 ] The same simply cannot be said about electronic communications between citizens. Text messaging has, to a large extent, replaced talking. People now communicate in a text message what they previously would have communicated orally, either in person or over the telephone.

While it is true that some of that communication might be made with an expectation of privacy, the form of the communication discloses nothing about the nature of the communication. This is what distinguishes electronic communication between citizens from the types of communications enumerated in s. 278.1 . [ 33 ] I appreciate that the jurisprudence does not limit the protection of s. 278 to those categories of records enumerated in the section.

In both R v Shearing and R v Quesnelle , documents not falling into specifically enumerated categories were deemed to be records because it was possible, simply by considering the nature of the document (the complainant’s diary and statements given to police in unrelated investigations), without having to resort to the content of the document, to find that such documents are produced with an expectation that they are confidential, regardless of their content. VII.

PROCEDURE TO BE FOLLOWED [ 34 ] Defence Counsel seeking to adduce documentary evidence pursuant to s. 278.92 of the Criminal Code may seek a ruling from the court (not necessarily the trial judge) as to whether the documents are records as defined in s. 278.1 and engage the procedure set out in 278.93 and 278.94. [ 35 ] The court should be provided with a copy of the documents, which will be sealed. [ 36 ] The Crown should not be provided with a copy of the documents. [ 37 ] The Crown should be provided with notice that such an application has been made and information regarding the parties to the communication, the platform used to communicate, and how the documents came to be in the possession of the accused.

If there is something inherent in the nature of the communication based on the parties to the communication or the privacy level of the platform used or if the accused sourced the documents surreptitiously, the crown will be in a position to argue that a reasonable expectation of privacy attaches to them, regardless of the content of the document. [ 38 ] If there is nothing inherent in the nature of the communication that gives rise to a reasonable expectation of privacy, then the court must consider the content of the communication. VII.

CONCLUSION [ 39 ] I have reviewed the documents that the Defence seeks to potentially adduce through cross-examination of the complainant. In my view they could not have been sent with any expectation of privacy as between the sender and the receiver. The Defence is permitted to adduce the documents. Dated at the City of Iqaluit this 9th day of February, 2021

___________________ Justice S. Cooper Nunavut Court of Justice