R. v. H.J.M., 2020 BCPC 275

Citation: R. v. H.J.M. 2020 BCPC 275 Date: 20200915 File No: 233586-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. H.J.M.

SECTION 486.4(1) CCC BAN ON PUBLICATION RULING ON APPLICATION OF THE HONOURABLE JUDGE LA PRAIRIE Counsel for the Crown: J. Henry, L. Ruzicka Counsel for the Defendant: J. Myers Place of Hearing: Surrey , B.C. Date of Hearing: September 4, 2020 Date of Judgment: September 15, 2020

Overview [1] H.M. has brought an application for a ruling on whether electronic documents in his possession constitute records pursuant to s.278.1 of the Criminal Code. [2] This issue was succinctly set out by the Ontario Superior Court of Justice in R. v.

Mai, 2019 ONSC 6691, at para. 5, whereJustice Roberts commented: In short, this application involves a threshold determination of whether certain communications in the possession of the defence, whichthe accused wishes the option of adducing at trial, meet the definition of record in s. 278.1 of the Criminal Code. [3] In a preliminary ruling dated August 28, 2020, I declined to grant the complainant standing to participate in the records hearing. Ialso set out various options for Mr.

M. to provide the Crown with sufficient disclosure of the contents of the electronic documents, inorder to permit a records hearing to proceed. [4] Mr. M. has now disclosed to the Crown the electronic messages in his possession, for which he seeks a ruling whether theyconstitute records pursuant to s. 278.1. [5] The messages consist of text messages, Facebook Messenger messages and SMS messages between Mr. M. and the complainant,E.L.

No third parties are included in the messages. [6] Upon a review of the messages, the Crown has agreed that a series of messages sent between the parties between July 24, 2014and November 6, 2016 do not constitute records pursuant to s. 278.1. Those messages are not in issue at the records hearing. [7] The messages in issue consist of SMS messages with the heading “E. 2014/15” dated September 13, 2017, text/FacebookMessenger messages dated September 3, 2010, February 27 to December 31, 2013, and text messages dated August 29 and 30, 2017. [8] Mr.

M. argues that the complainant has no reasonable expectation of privacy in these messages and so they do not fall within thedefinition of record as set out in s. 278.1. The Crown argues that there are aspects of the messages, which do attract an expectation ofprivacy, which render them records pursuant to s. 278.1. [9] The records hearing is occurring while the complainant is under cross-examination. This is a distinguishing factor in this case,from the case authority provided to the Court, where the provisions of s. 278.1 of the Code have been considered prior to thecommencement of trial.

Expectation of Privacy [10] The definition of record is set out in s. 278.1 of the Code. The

section sets out that “[F]or the purposes of sections 278.2 to278.92, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy”.Electronic messages such as texts, SMS or Facebook Messenger documents are not listed in the enumerated documents that constituterecords under the section. [11] Case authority affirms that electronic documents may constitute records under s. 278.1. It is not the type of document that isdeterminative of whether it is a record, but rather the content of the document that is relevant to this issue.

The issue to be determined iswhether the electronic documents, or messages, contain personal information for which there is a reasonable expectation of privacy. (SeeR. v. Quesnelle, 2014 SCC 46, at para. 22; R. v. R.M.R., 2019 BCSC 1093, at para. 36; R. v. Navia, 2020 ABPC 20, at para. 69; R. v.W.M., 2019 ONSC 6535, at para. 8.) [12] In assessing whether an electronic message contains personal information for which a reasonable expectation of privacy exists,the Court must take into consideration the totality of the circumstances in which the message was created.

In addition to the content ofthe message, other relevant factors may include the manner in which the message was conveyed and the nature of the relationshipbetween the parties. (See R. v. Mai, 2019 ONSC 6691, at para. 19.) [13] In R. v. McKnight, 2019 ABQB 755, at para. 31, in addressing potential privacy concerns of a complainant in relation toelectronic messages sent to the accused, the Court referenced comments of the Supreme Court of Canada in R. v.

Mills, (SCC), [1999] 3 S.C.R. 668, stating: Privacy concerns are at their strongest where aspects of one’s individual identity are at stake, such as in the context of information aboutone’s lifestyle, intimate relations or political or religious opinions. [14] Likewise in the decision of R. v.

M.S., 2019 ONCJ 670, the court found that the complainant had a reasonable expectation ofprivacy in text messages exchanged with the accused as “[T]hose communications contain personal information such as the parties’thoughts, aspirations, feelings, friendships, social interactions and the details of their daily activities”. (See para. 72.) [15] In R.M.R, the Court found that text messages exchanged between the complainant and accused constituted records pursuant to s.278.1.

In coming to this determination, Justice McNaughton noted, that “In my view, it is too simplistic to conclude that, by sending thetext messages to R.M.R., D.H. has waived any privacy interest she had in them”. (See para. 33.) [16] Justice McNaughton determined that the complainant had a reasonable expectation of privacy in the text messages between herand the accused, as the messages contained personal information including feelings, thoughts, details of daily activities, preferences,

friendships and social interactions. (See para.38.) [ 17 ] In Mai , the Ontario Superior Court of Justice came to a different conclusion respecting text messages exchanged between the complainant and the accused. The text messages were divided into three separate bundles, with copies provided to the Court. The first bundle consisted of four conversations concerning drug use between the parties. The second bundle consisted of a discussion concerning social planning between the parties.

The third bundle consisted of a discussion concerning social planning, including comments falling under the definition of “sexual activity” in s. 276(4) of the Code . (See paras. 9 and 10.) [ 18 ] Counsel for the accused advised the Court that he did not intend to put the comments which fell under the definition of “sexual activity” to the complainant in cross-examination, as that would require an application pursuant to s. 276 of the Code . (See para. 12.) [ 19 ] In determining whether there was a reasonable expectation of privacy in the text messages, the Court reiterated that the totality of the circumstances must be considered.

This includes an assessment of whether the complainant ought to expect privacy in the circumstances. (See para. 19.) [ 20 ] In addressing the relevant circumstances of the communications, the Court made the following statement at paragraph 20: I would divide the relevant circumstances into two broad categories: namely, the nature of the information contained in the record, and the context in which the record was created and obtained by the accused. I do this for two reasons.

First, I believe it makes sense to begin by looking at the content of the record in light of [the] purpose of the legislation, namely to protect the privacy and equality rights of the complainant. As Justice Moldaver recently reminded us in R. v. Barton , 2019 SCC 33 , protecting the privacy and equality rights of complainants remains a vital concern in society, requiring action, including by the courts. The content of a record is what is most important in protecting these rights.

Second, the nature of the information will in many, if not most, cases be determinative of the threshold question… [ 21 ] In fact, the Crown acknowledged that communications between the parties concerning arrangements for meeting at particular dates or times did not contain personal information and thus did not engage the records regime in s. 278.92. (See para. 21.) [ 22 ] However, reference to drug use in the communications could attract a reasonable expectation of privacy, requiring further examination by the Court.

In assessing the totality of the circumstances, the Court commented that reference to drug use occurred during casual discussions between the parties over social planning and meeting up. Thus, the Court found that the complainant did not have a reasonable expectation of privacy in the text messages in the circumstances. (See paras. 28 and 29.) [ 23 ] In addition, the Court noted that the complainant had testified about her drug use during the preliminary inquiry.

The Court made the following comments: “[T]hese circumstances include the fact that the complainant makes no secret of her drug use: it was front and centre at the preliminary inquiry, as I expect it will be at trial”. (See para.31.) [ 24 ] In all of the circumstances, the Court concluded that the complainant did not have a reasonable expectation of privacy in the text messages exchanged with the accused.

Hence, the Court determined that the text messages were not records pursuant to s. 278.1 of the Code . (See para. 32.) [ 25 ] In W.M ., counsel relied up the transcript from the preliminary inquiry to provide a factual basis for the records hearing pursuant to s.278.1.

The evidence from the preliminary inquiry was considered in assessing the totality of the circumstances, and whether the complainant had a reasonable expectation of privacy in the electronic messages she exchanged with the accused. (See para. 14.) [ 26 ] The court drew a distinction between past expectations of privacy and the expectation of privacy at the time of trial, stating at paragraphs 30 and 31: [30] Before assessing whether Ms.

M.-A. has a reasonable expectation of privacy and what factors go into that determination, it is important to note that s.278.1 defines a record as anything that contains information over which Ms. M.-A. has [as] reasonable expectation of privacy. The decision is not whether Ms. M.-A. has at some time in the past had a reasonable expectation of privacy, although that may well be a relevant consideration. The question is whether Ms. M.-A. has a reasonable expectation of privacy at the time the application is made. [31] Whether Ms.

M.-A. has a reasonable expectation of privacy in the conversation she had with W.M. through Facebook Messenger must be assessed in the “totality of the circumstances”. [13] Privacy is not an “all or nothing concept”. [14] The fact that W.M. is in possession of the messages does not necessarily extinguish Ms.

M.-A.’s expectation of privacy over their content. [15] Again, that may be a relevant factor but it is not determinative. [ 27 ] In the same vein the court commented at paragraph 33: Several cases have considered whether, and to what extent, a person continues to have an expectation of privacy over personal information that they share with others or have given people the ability to access. [ 28 ] In applying an objective standard to the assessment, the court commented at paragraph 40: These cases all demonstrate that the determination of whether someone has a reasonable expectation of privacy is very fact specific.

It is not based exclusively on a risk analysis. It is not based exclusively on who controls the information. It is a normative analysis that asks whether an independent, informed observer would think that Ms. M.-A. ought to have an expectation of privacy over the information, given the circumstances. [ 29 ] In the end, the Court determined that the complainant did not have an objectively reasonable expectation of privacy in the electronic messages in the circumstances. (See para. 41.)

[ 30 ] Lastly, in Navia , the Court echoed the comments of Justice McNaughton in R.M.R. that “whether a document is a record is to be decided in the context of the privacy interests in a specific case”. (See para. 77.) Electronic Messages [ 31 ] There are four sets of electronic messages between E.L. and Mr. M. that are before the court on this records hearing: 1. Text/Facebook Messenger messages dated September 3, 2010; 2. Text/Facebook Messenger messages between February 27 and December 31, 2013; 3. Text messages dated August 29 and 30, 2017; and 4.

SMS messages with the heading “E. 2014/15” dated September 13, 2017. Text/Facebook Messenger messages dated September 3, 2010 [ 32 ] The first set of messages consists of a lengthy message sent by Mr. M. to E.L. in which he references a “kid” named B. [ 33 ] Ms. L. responds to Mr. M.’s message and indicates she will call him later at night when everyone is in bed and that she has dealt with what needed to be dealt with. [ 34 ] The fact that E.L. indicates that she will contact Mr. M. later at night when everyone is in bed appears consistent with her wanting to discuss a personal issue with him. Mr.

M.’s initial message to E.L. suggests that he is referencing a private matter with which she is dealing with. The messages appear to be of a private nature and require further examination by the Court. [ 35 ] Mr. M. argues that E.L. cannot have a reasonable expectation of privacy in the messages dated September 3, 2010, as she testified in direct examination about the circumstances contained in the messages. [ 36 ] The entire message that was sent by Mr. M. to the complainant was put to her in cross-examination. No objection was raised when this occurred. It is the position of Mr.

M., that because he sent the message to E.L., she cannot have a reasonable expectation of privacy in its contents. I do not agree with that position. The fact that the accused sends a message to the complainant, discussing personal aspects of her life, does not preclude the complainant from having a reasonable expectation of privacy in the message. The totality of the circumstances must be considered, in order to determine if the complainant has an objectively reasonable expectation of privacy. [ 37 ] Although the entire message sent by Mr.

M. to the complainant was put to her in cross-examination, only the first half of the message containing the date it was sent was put into evidence as Exhibit 4. However, in both direct and cross-examination the complainant testified about the circumstance of events, that represent the contents of the messages exchanged on September 3, 2010 and entered into evidence as Exhibit 4. [ 38 ] Upon review, I do not find that the text messages exchanged between the parties on September 3, 2010, constitute records pursuant to s. 278.1.

The complainant has testified about the circumstance of events, which form the subject matter of the text messages on that date. In addition, these events relate directly to one of the alleged incidences of sexual touching with which Mr. M. is charged. Therefore, considering the totality of the circumstances, I do not find that the complainant has a reasonable expectation of privacy in these text messages. Text/Facebook Messenger messages between February 27 and December 31, 2013 [ 39 ] These messages begin on February 27, 2013, with Mr. M. indicating to E.L. that he can assist her in finding a summer job.

They discuss her school schedule. On December 31, 2013, Mr. M. sends E.L. a lengthy message discussing his life and feelings. There is nothing of a personal nature that relates to the complainant. [ 40 ] I am satisfied from a review of the messages that the complainant does not have a reasonable expectation of privacy in their contents. Therefore, these messages are not records pursuant to s. 278.1. Text messages dated August 29 and 30, 2017 [ 41 ] The messages from these dates commence on August 29, 2017 at 8:41 p.m., with E.L. texting Mr.

M. that she will be in Vancouver for a couple of days, staying with some Mexican twins she met in the Sahara. In the text, she indicates she thought of Mr. M. when her friends mentioned the Cobalt. During the trial, E.L. testified about attending the Cobalt with Mr. M. when she was underage, drinking and returning to his apartment where he engaged in sexual activity without her consent, and while she was under the age of 16 years. She also testified about the circumstances years later when she met up with her Mexican friends in Vancouver and ended up spending the night with Mr.

M. [ 42 ] There are numerous text messages throughout the evening and night between E.L. and Mr. M. The messages are about meeting up and where each of them will be staying. The messages continue into the early morning hours on August 30, 2017 and then later that morning and day. The majority of the messages concern their plans for the day and arranging a location to meet later. The majority of the messages are of innocuous conversation. [ 43 ] The Crown takes the position that various comments in the numerous messages attract a privacy interest on the part of the complainant.

As an example, E.L. comments that she is staying with her parents, to which Mr. M. responds, “Oh my God”. The Crown argues that this is a negative comment about the relationship between E.L. and her parents. There is also a message the following day where E.L. indicates that she is stoned after having gone on a hike with her Mexican friends.

[ 44 ] During her testimony, E.L. testified about staying with her parents and her relationship with her family. She also testified about drinking underage, going to bars and getting drunk. I do not find the comments in the messages concerning staying with her parents or being stoned attract a reasonable expectation of privacy in the circumstances. By and large, the messages sent between E.L. and Mr. M. concern arrangements to meet and topics the complainant has already testified to in her evidence.

Therefore, I do not find that the complainant has a reasonable expectation of privacy in the text messages of August 29 and 30, 2017. The text messages do not constitute records pursuant to s. 278.1. [ 45 ] However, there are references in the texts to “sexual activity” as defined in s. 276(4) of the Code . [ 46 ] I am satisfied that the following comments in the texts fall within the definition of “sexual activity” as set out in the section: 1.

August 29, 2017, 11:55 p.m.: E.L. – I’m in Langley tonight, coming into downtown tomorrow and staying the night with friends; 11:56 p.m. – Unless you have a more appealing option; 11:56 p.m. – That is not sharing one room with five dudes. 2. August 30, 2017, 12:01 a.m.: E.L. – Delay! Haven’t seen you in years; 12:02 a.m. – Just for one night (emoji of a face with an open mouth) 3. August 30, 2017, 3:12 p.m.: J.M. – PS You’re a dork. And I bet you’re wearing ridiculous cut-off shorts and something that your bra can be seen through if you’re wearing one …; 4.

August 30, 2017, 5:53 p.m.: E.L. – Also can you bring me a pair of boxers? (emoji of a smiley face); J.M. 6:24 p.m. – I’ll bring better. But you have to leave them at your parents place because I love them; E.L. 7:05 p.m. – Deal. [ 47 ] Based upon the content of these exchanges in the text messages and the evidence at trial, I am satisfied that these four exchanges are references to sexual activity. Thus, the provisions of s. 276 are applicable.

SMS messages with the heading “E. 2014/15” dated September 13, 2017 [ 48 ] A series of SMS messages were sent between the complainant and the accused on September 13, 2017. In direct examination, E.L. testified about the circumstances that are captured in the messages. In fact, she testified that she and Mr. M. were texting each other concerning the events set out in the messages.

The messages reflect what was taking place that day as testified to by E.L. [ 49 ] As E.L. testified about the events that are captured in the SMS messages dated September 13, 2017, I do not find that the complainant has a reasonable expectation of privacy in these messages. They do not constitute records pursuant to s. 278.1 of the Code . Conclusion The electronic messages in the possession of Mr. M. do not constitute records pursuant to s. 278.1 of the Code .

If the complainant had a reasonable expectation of privacy in some of the messages at an earlier point in time, that expectation of privacy is not objectively reasonable at this stage of the trial given her testimony. Thus, I am unable to find that the complainant has a reasonable expectation of privacy in the electronic messages at issue in this records hearing. _____________________________ The Honourable Judge P. La Prairie Provincial Court of British Columbia