R v AK, 2022 ABKB 651

Court of King’s Bench of Alberta Citation: R v AK, 2022 ABKB 651 Date: 20220930 Docket: 210273637Q1 Registry: Edmonton Between: His Majesty the King Crown - and - AK Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on November 9, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision on Voir Dire of the Honourable Justice L.K. Harris _______________________________________________________

I. Overview [1] A.K. (the “Accused”) is charged with one count of sexual assault contrary to s. 271 of the Criminal Code and one count ofuttering a threat to cause death or bodily harm contrary to s. 264.1(1) of the Criminal Code. The trial is scheduled to commenceNovember 7, 2022 in Edmonton, Alberta, before a Judge and Jury. [2] There are two applications before the Court.

The Crown applies pursuant to the common law principles set out in R vSeaboyer, (SCC), [1991] 2 SCR 577 (“Seaboyer”) for a ruling on the admissibility of certain text messages and whetherevidence that the Complainant engaged or did not engage in other sexual activity is properly admissible into evidence. [3] The Accused also applies for a ruling on whether a certain group of electronic messages exchanged between the Accused andthe Complainant comprise a “record” relating to the complainant such that they are caught by s.278.92 and therefore must be the subjectof an application pursuant to s. 278.93 for a hearing under s. 278.94 to determine their admissibility.

II. Background [4] The Crown alleges that in August 2020, the Complainant attended the Accused’s residence. While there, the Crown allegesthat the Accused sexually assaulted the Complainant. While the alleged assault was occurring, three unknown males broke into theresidence and assaulted the Accused. The Complainant then escaped. [5] The Complainant reported the matter to police on December 11, 2020.

Crown alleges that the Complainant received a seriesof text messages on that day from an unknown phone number that included the following: “Heard U were going to the cops about me raping you!” “You now who this is you du.b bitch” “AK u know who I am” “I am not saying my name or using my number if you go to the cops and report me for raping you I will find you and I will kill you!” [6] These messages will be referred to as the “Text Messages”. [7] The Text Messages are reproduced on several pages. Some of the individual messages appear to be incomplete as they arecut off at either the top or the bottom.

The date “Friday, December 11, 2020” appears at the beginning of the messages. There are timestamps on each message, starting with 12:45 p.m. However, there is nothing in the Text Messages as reproduced indicating what numberthe messages were sent from, whether they were received by the Complainant’s number, or who the authors were. [8] Crown attached the Text Messages to its written submissions but did not arrange for anyone to review them and swear anaffidavit attesting to the origin of the Text Messages.

In submissions, Crown argued that it wishes to put the Text Messages to theComplainant and ask her questions regarding why she believes the Text Messages were sent by the Accused. The Text Messages formthe basis for the charge of uttering a threat.

Crown seeks a ruling on the admissibility of the Text Messages and the permissible scope ofquestions arising to be put to the Complainant during the trial proper. [9] On March 24-25, 2021, the Complainant and the Accused engaged in an exchange of electronic messages through Facebookwhich are exhibited to an affidavit sworn by a student-at-law employed by Defence counsel’s firm.

Included in that exchange wereseveral statements made by the Complainant to the effect that her partner had assaulted her on several occasions, as well as the followingstatement by the Complainant: “I am sorry for everything” [10] These messages will be referred to as the “Facebook Messages”. [11] Defence intends to argue that this particular statement within the Facebook Messages is an admission by the Complainant offabricating the report of sexual assault.

Defence acknowledges that the inclusion of information regarding the Complainant beingassaulted by her partner elsewhere in the Facebook Messages calls into question whether the Facebook Messages are a “record” pursuantto s. 278.1 and as such are subject to the procedures set out in ss. 278.92 – 278.94. Defence seeks a ruling on this issue in advance of thetrial proper. III. Records Relating to the Complainant in thePossession of the Accused [12] I will first address the Accused’s application regarding the Facebook Messages. [13]

Section 278.92 governs the admissibility of records relating to a complainant that are in the possession or control of anaccused, and which an accused intends to adduce into evidence. Like s. 276, s. 278.92 sets out a rigorous, multistep process for vettingsuch evidence. These provisions were introduced in 2018 and created a new record screening regime restricting the admissibility of

certain records relating to sexual offence complainants that are held in the hands of an accused. [ 14 ] The Supreme Court recently considered a constitutional challenge to these provisions in R v JJ, 2022 SCC 28 , (“ JJ ”) and in doing so, clarified the two-stage procedure to be followed and the considerations to be undertaken by the presiding judge on such applications. [ 15 ] Stage one requires the accused to bring an application in writing “setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial” (s. 278.93(2)) at least seven days prior to the application. [ 16 ] Both parties agree that these procedural requirements have been met in this case. [ 17 ] Next, the presiding judge must review the application and decide if the proposed evidence is a “record” as defined under s. 278.1. [ 18 ] JJ addresses what evidence may be considered a “record” under s. 278.1.

That

section defines a “record” as “any form of record that contains personal information for which there is a reasonable expectation of privacy”.

A non-exhaustive list of categories is included: 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.” [ 19 ] The Facebook Messages do not fall within these enumerated categories.

As such, they must be scrutinized to determine whether they contain “personal information” for which there is a “reasonable expectation of privacy.” [ 20 ] The factors to consider when determining if the messages are non-enumerated records and caught by s. 278.92 are described in JJ. The presiding judge must consider both the content and the context of the material to determine if the material contains information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being.

With respect to content, if the material contains information that might typically be contained in an enumerated record then this is a factor that weighs in favor of it being subject to s. 278.92.

With respect to context, the Court is to apply a “normative and common-sense approach” and consider, for example, why the complainant shared the private information, the relationship between the parties to the information, where the record was shared and how it was created or maintained. [ 21 ] In this case, both parties have agreed that the messages of concern (the specific messages relating to the assault of the Complainant by her partner) may be redacted from the Facebook Messages without affecting the overall integrity of the Facebook Messages, and that with these redactions, the Facebook Messages are not a “record” under s. 278.1. [ 22 ] I agree.

The only portions of this evidence sought to be adduced by Defence of concern are those portions relating to the assaults upon the Complainant. Their redaction eliminates any need for an analysis as to whether such portions cause the Facebook Messages to become a “record” such that they are caught by s. 278.92. Therefore, providing that the Facebook Messages put to the Complainant by the Accused are redacted in accordance with the agreement reached by counsel, there is no longer any requirement for an application pursuant to s. 278.92 as the Facebook Messages are not a “record” under s. 278.1.

To be clear, the Facebook Messages to be redacted are the following: all of page 1/7, on page 2/7 everything above the message stamped March 25, 2021 at 12:12 am, on page 4/7 the first message stamped March 25, 2021 at 12:05 am, on page 5/7 the message stamped March 25, 2021 at 12:00 am, on page 6/7 the first message stamped March 24, 2021 at 11:53 pm. IV. Evidence of Other Sexual Activity [ 23 ] I will next address the Crown’s application. [ 24 ] Both parties agree that the Complainant’s evidence regarding the Text Messages could relate to other sexual activity or the absence of other sexual activity.

When the Complainant is asked by Crown to authenticate the Text Messages and why she believes the Text Messages came from the Accused, the Complainant could provide a response indicating that she knows they came from the Accused because, for example, (

a) they refer to “rape” and the only time she has been sexually assaulted was in August, by the Accused, or (

b) she had been sexually assaulted another time, but there is something about these Text Messages that tell her they came from the accused. A. General Principles [ 25 ]

Section 276 establishes a process through which other sexual activity evidence must be carefully vetted. To make its way into evidence at trial, such evidence must withstand careful scrutiny at each stage of the process. The s. 276 regime is designed to balance, respect and preserve the rights of both complainants and accused persons by excluding evidence which would undermine the legitimacy of the criminal justice system and inhibit the search for truth, while allowing for the admission of evidence which would enhance the legitimacy of the criminal justice system and promote the search for truth.

In this way, the s. 276 regime seeks to promote the integrity of the trial process the enhance the public’s faith in the criminal justice system: R v Goldfinch, 2019 SCC 38 at para 28 , 81 and 82; R v RV , 2019 SCC 41 at paras 1 and 32 . [ 26 ] In any case involving the sexual offences listed in s. 276(1), evidence of the Complainant’s other sexual activity is presumptively inadmissible.

If evidence of other sexual activity is relied upon only to suggest that the Complainant was more likely to have consented to the sexual activity in question or is generally less worthy of belief, then the evidence undermines the truth-seeking function of the criminal trial process and threatens the equality, privacy and security rights of complainants. Evidence adduced for this purpose is not relevant at trial and is not admissible into evidence: Seaboyer , R v Darrach , 2000 SCC 456 at para. 33 ; Goldfinch , at

paras 1 and 90 ; RV at paras 2, 36 and 44. [ 27 ] The balance of the statutory scheme in s. 276(2) and (3) applies to evidence which the Accused seeks to adduce, and not to evidence which the Crown seeks to tender, recognizing and accommodating the rights of the Accused by permitting the Accused to rebut the presumption of inadmissibility of other sexual activity through the two-stage process set out in s. 278. [ 28 ] Although the balance of the s. 276 regime refers to other sexual activity evidence being adduced by the Accused, R v Barton , 2019 SCC 33 , at para. 80 makes it clear that the common law principles in Seaboyer also apply to an application brought by the Crown to adduce evidence of a complainant’s prior sexual activity: First, s. 276(1), which confirms the irrelevance of the “twin myths”, is categorical in nature and applies irrespective of which party has led the prior sexual activity evidence.

Thus, regardless of the evidence adduced by the Crown, Mr. Barton’s evidence was inadmissible to support either of the “twin myths”. Moving to s. 276(2), while it is true that this provision applies only in respect of “evidence . . . adduced by or on behalf of the accused”, the common law principles articulated in Seaboyer speak to the general admissibility of prior sexual activity evidence.

Given that the reasoning dangers inherent in prior sexual activity evidence are potentially present regardless of which party adduces the evidence, trial judges should follow this Court’s guidance in Seaboyer to determine the admissibility of Crown- led prior sexual activity evidence in a voir dire (see pp. 633-36).” [ 29 ] The Seaboyer principles require that the proposed evidence is relevant and that its probative value is not substantially outweighed by the danger of unfair prejudice.

In R v Santillana , 2022 ABQB 108 , Bercov, J. held that in fact there is a higher standard that applies to Crown-led evidence; the probative value must not be merely outweighed (as opposed to substantially outweighed) by its prejudicial effect (at para. 25). [ 30 ] There are two additional, important points. First, even if the Complainant’s evidence discloses sexual inactivity, or put another way, the absence of sexual activity, such evidence still engages the requirement for a voir dire on admissibility: RV at paras. 81- 82.

Second, the Seaboyer principles apply to non-consensual activity, not just consensual activity: Darrach , at para. 33. [ 31 ] Admission into evidence does not give open-ended permission to question the Complainant on the other sexual activity. The scope of the questioning must be narrowed to minimize the impact on the Complainant, while maintaining the accused’s ability to answer the charges: RV at para 67.

Open-ended questioning about an individual’s sexual activity, even during a particular timeframe, risks devolving into the very type of inquiry that s. 276 was intended to prevent: RV at para 68. [ 32 ] If the evidence of other sexual activity is ruled admissible then the Court must also instruct the Jury as to the use that can be made of the evidence as well as the uses that the Jury cannot make of the evidence (s. 278.96). B.

Analysis [ 33 ] The Accused argues that the Text Messages do not meet the requirements of Stage 1 because Crown has not established through affidavit or other evidence that the Text Messages are either relevant to an issue at trial or that they have significant probative value that is not outweighed by the danger of prejudice to the proper administration of justice. [ 34 ] The Accused argues that Crown ought to have provided evidence establishing that the Text Messages were obtained from the Complainant, that she believed they were authored by the Accused, and the reasons for that belief.

Without evidence establishing the relevance of the Text Messages, they comprise of nothing more than an apparently incomplete collection of messages from an unknown author to an unknown recipient. The Court is being asked to speculate as to their provenance. Accordingly, the Crown has not met the requirement that the application set out “detailed particulars of the evidence” and the “relevance of that evidence to an issue at trial”. [ 35 ] The Accused relies upon Darrach in support of his position.

Darrach is somewhat different factually than this case as it involves a Defence application to adduce evidence whereas in this case it is a Crown application. Regardless, the Supreme Court in Darrach specifically notes at page 475 that s. 276.1(2)(a) [the

section in force at the time] requires the defence to provide “detailed particulars” of the evidence it seeks to adduce. The Accused argues that the same requirement applies to the Crown. [ 36 ] The Crown disagrees. It says that in this case, it would be the Complainant who would need to swear such an affidavit, however, the Complainant is not a compellable witness. Further, the inquiry the Crown is asking to be conducted by the Court is an inquiry into the permissible questions arising from the Text Messages at this stage is only.

Whether the Text Messages themselves are admissible at trial is not an issue that needs to be determined in the context of this application. [ 37 ] The requirement for affidavit evidence in s. 276 applications was addressed in R v TAH, 2019 BCSC 1614 (“ TAH ”). The Court notes in TAH that the Criminal Code does not expressly require an affidavit as part of a s. 276 application, however, Darrach appears to impute that requirement. The majority of such applications by an accused are supported with affidavits. The Court went on to describe some examples where accuseds have not provided affidavits.

In those cases, however, there was other evidence for the Court to rely upon, including viva voce testimony, transcripts from a preliminary inquiry, or an information and belief affidavit sworn by counsel who referenced testimony from the complainant at a preliminary inquiry. [ 38 ] In TAH , the Court concluded at paras. 36-37: These cases indicate that the court has a discretion to proceed to an evidentiary hearing notwithstanding defects or omissions in the materials or process. That there is a discretion was confirmed in R. v. LeBrocq , 2011 ONCA 405 [ LeBrocq ], at paras. 7 to 9 .

There, the Ontario Court of Appeal held that a trial judge has no obligation to conduct an admissibility hearing if no basis for that hearing is shown. The decision is discretionary. From that, it would appear that a trial judge may proceed to an admissibility hearing even if the criteria for such a hearing are not met. While LeBrocq was focused on the exercise of discretion in relation to the substantive issues and not procedure, I conclude that it offers some support for discretion on procedural issues as well.

As a result of this analysis, I conclude that the court has the discretion to proceed to the admissibility phase of the application in the absence of an affidavit from the accused, so long as the accused, in his written application, sets out “detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial” in some evidentiary form. A transcript from the preliminary inquiry seems the most obvious example of the latter.

But having said that, I also observe that accuseds who fail to support a s. 276(2) application with a personal affidavit, ignoring the clear direction from the Supreme Court of Canada in Darrach , do so at their peril. There are two reasons for this. First, when faced with an absence of an affidavit from the accused, it is within the discretion of the trial judge to decline to proceed further.

Second, without an affidavit from the accused the court is hampered in its ability to assess either the relevance or the significance of the proposed evidence. “Significance” is important because the test set out in s. 278.92(2) requires that the proposed evidence have “significant probative value that is not substantially outweighed by the danger of prejudice …”.

In brief, the absence of an affidavit may well impair an accused in surmounting the presumption of inadmissibility. [ 39 ] TAH was followed by R v AI , 2020 BCSC 1791 in which the Court considers a s.276 application by an accused who did provide an affidavit, albeit without asserting a positive defence. The Court states at para. 88: I do not read any of the authorities relied on by the complainant as standing for the proposition that the accused can only succeed on an application under s. 276 or s. 278.92 on the strength of an affidavit asserting a positive defence.

Rather, the key concern raised by the courts is whether the accused is able to meet his burden of establishing admissibility of the evidence he proposes to call: see Darrach at para. 51 . I accept that, in most cases, the “absence of an affidavit may well impair an accused in surmounting the presumption of inadmissibility ”: T.A.H . at para 37 . However, this is not a hard and fast rule.

Each case must be determined on its own unique set of facts. (emphasis added) [ 40 ] The Crown argues that had Parliament specifically wished to require any applicant under s. 276 to support the application with a sworn affidavit it could have done so, and yet did not. However, the absence of such a requirement does not mean that an applicant, including the Crown, may avoid the necessity of establishing the admissibility of the evidence it proposes to call, especially given the “clear direction” in Darrach .

Establishing the admissibility may be done by way of affidavit, or it may be done by way of other evidence properly before the Court. As noted in TAH and AI, the Court has the discretion to decide what evidence to accept. [ 41 ] I am of the view that the requirement for evidence properly before the Court applies equally to a Crown Seaboyer application for other sexual activity evidence as it does to an application brought by an accused under s. 276. Although the Complainant may be the obvious choice for swearing a supporting affidavit, the fact that the Complainant is not compellable is irrelevant.

The Accused cannot be compelled to testify and yet as we see from the cases, it is common to see affidavits sworn by an accused in such applications. Whether or not a particular witness is compellable does not eliminate the necessity for an evidentiary basis for establishing that the requirements under either s. 276(2) or pursuant to Seaboyer are met. [ 42 ] In addition, Barton makes it clear that the Seaboyer principles apply to the Crown as much as the accused.

There is no principled reason to alleviate the Crown from the burden of providing some evidentiary basis upon which the Court may assess relevance or the significance of the proposed evidence. [ 43 ] In this case, there is no evidence properly before the Court. Although I have the submissions of Crown counsel, there is no affidavit, viva voce evidence or preliminary inquiry transcript that I may rely on to assess the relevance and probative value/prejudicial effect of what the Crown seeks to adduce.

Even if what I am assessing are only the questions that Crown proposes to put to the Complainant, and not the Text Messages themselves, I have no evidentiary basis to satisfy me that those questions meet the requirements set out in Seaboyer . [ 44 ] Accordingly, I cannot conclude that the evidence sought to be adduced by the Crown is capable of being admission at the trial proper, simply because there is no evidence of its relevance or probative value. V.

Conclusions [ 45 ] The Facebook Messages with the redactions are admissible as evidence in the trial proper and may be put to the Complainant by the Accused. [ 46 ] The other sexual activity evidence in the nature of the Text Messages and evidence of the Complainant flowing from those messages are not admissible as evidence in the trial proper. Heard on the 15 th day of September, 2022. Dated at the City of Edmonton, Alberta this 30 th day of September, 2022. L.K. Harris J.C.K.B.A.

Appearances: Meghan Rohatyn Alberta Justice for the Crown Stacey M. Purser Purser Law for the Accused _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice L.K. Harris _______________________________________________________ Corrected the spelling of Defendant’s counsel.