R. v. T.K., 2022 ONCJ 21

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. The court hearing this matter directs that the following notice be attached to the file: This hearing is governed by

section 278.9 of the Criminal Code : 278.9…Publication prohibited.—

(1) No person shall publish in any document, or broadcast or transmit in any way, any of the following: . . . (

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.

(2) Offence. — Every person who contravenes subsection (1) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. T.K., 2022 ONCJ 21 DATE: January 19, 2022 BETWEEN:

HER MAJESTY THE QUEEN — AND — T.K. Before Justice L. Botham Ruling on

Section 278.4 Application released on January 19, 2022 Emma Evans....................................................................................... Counsel for the Crown Danielle Robitaille ………………………………………… Counsel for the accused T.K. Jen Danch ………………………………………………… Counsel for A.D.B. and K.D.B. Megan Stephens …………………………………………………………. Counsel for M.M. BOTHAM J.: [ 1 ] The Applicant is charged with sexual interference and sexual assault with respect to K.D.B. (the complainant).

Although the initial application was framed more broadly, the Applicant now only seeks production of the complainant’s electronic communications with her sister, A.D.B. and her friend M.M. for the period of March 13, 2021 and March 14, 2021. [ 2 ] I understand that this time frame has been selected to encompass any electronic messages relating to the plan to attend the Applicant’s residence and any messages sent while the complainant remained at his residence after A.D.B and M.M had left to pick up another friend.

The Applicant no longer seeks production of electronic messages exchanged between the parties once the complainant had left the Applicant’s residence. [ 3 ] The Applicant also seeks production of any photos or videos created by the complainant or A.D.B or M.M. either leading up to their attendance at the apartment or while there. [ 4 ] All three witnesses oppose production. [ 5 ] On March 13, 2021, all parties were present in the Applicant’s residence. I understand that A.D.B had invited the complainant and M.M. to the residence.

I understand that that conversation took place using Facetime and the complainant and M.M. were told that the Applicant understood them to be 18 years old, although they were actually 15 at the time. [ 6 ] The complainant and M.M. arrived at the residence. There is no dispute that they told the Applicant that they were 18 years old and students at OCAD, the Ontario College of Art and Design. A Nest-Cam video which was operating at the time of their arrival, recorded that initial conversation. [ 7 ] The complainant and M.M. can be heard discussing with the Applicant details concerning their studies.

At some point A.D.B and M.M. left the residence to pick up another female friend. The plan was that they would return shortly. However, when they did return, they were unable to gain access to the Applicant’s residence because he was not answering his cell phone and the concierge would not admit them.

Ultimately A.D.B called her mother who arrived at the building and eventually the police became involved. [ 8 ] Further Nest-Cam footage shows the complainant leaving the residence and I understand that it is common ground that she joined her family downstairs and did not return to the residence. [ 9 ] All three witnesses as well as Crown counsel submit that the Applicant has failed to establish that the records sought are relevant to any issues at trial.

It is further submitted that their production is not necessary for full answer and defence since other evidence already exists relating to the trial issues raised by the Applicant. It is further submitted that the complainant and the witnesses retain a high expectation of privacy in their electronic communications and any photographs taken at the residence which should limit the scope of production or even judicial review of the records. [ 10 ] The complainant asserts that she did not consent to the sexual intercourse which occurred that evening.

It is not clear to me from the materials filed or the submissions made whether the Applicant concedes that there was sexual activity between the Applicant and complainant that evening. However, if it is found that there was sexual activity and the Crown’s evidence does not prove an absence of consent, then the reasonableness of the Applicant’s belief with respect to the complainant’s age, would be a live issue at trial.

[ 11 ] The Applicant asserts that evidence of the discussions between the three witnesses relating to what was going to be said to him about their ages may be evidence upon which the defence could rely to substantiate the reasonableness of his belief. [ 12 ] The Applicant also seeks production of any photographs or videos taken by these three witnesses while they were at the Applicant’s residence. There is evidence from M.M. that pictures were taken.

It is submitted that photographs of the complainant would show how she appeared that evening, which again might be relevant to assessing the reasonableness of the Applicant’s belief that she was 18. [ 13 ] At this point, I am only being asked to consider whether the Applicant has established that the records sought, if they exist, should be produced to myself for review, per s. 278.5 of the Criminal Code . [ 14 ] Production for review should only occur where I am satisfied that the Applicant has established that the record is likely relevant to an issue at trial and that the production of that record is necessary in the interests of justice. [ 15 ]

Section 278.5(2) sets out factors to be considered in ordering production for review. I am directed to consider the extent to which the records are required to make full answer and defence and the probative value of the records.

I also must consider the witnesses’ reasonable expectation of privacy in the records and any potential prejudice to the personal dignity and right to privacy of any person to whom the record relates and society’s interest in encouraging the reporting of sexual offences and encouraging the obtaining of treatment by complainants as well as the overall effect of such an order on the integrity of the trial process. [ 16 ] In this case the Applicant seeks production of the communications on a discrete issue, the witnesses’ decision to mispresent their age to him and how that was to occur.

Clearly the complainant and the witnesses have a privacy interest in their communications. However, this line of question could occur in the absence of such an order. The Applicant simply would be left with their answer, rather than receiving concrete evidence of what had been discussed.

The Applicant is not seeking production of any materials which could be said to contain information of a highly personal or intimate nature. [ 17 ] The Applicant seeks production of any photographs or videos created by the complainant and the witnesses at his residence or proximate to the events that evening. [ 18 ] I can see the potential relevance of both items of evidence sought by the Applicant, should they exist.

That is of course only one of the factors to be considered on the issue of ordering production of those items. [ 19 ] There is no doubt that the complainant and the witnesses have an expectation of privacy in all of their conversations. However, the records sought are not therapeutic in nature. Nor does it appear from the context of what is sought that the communications would give rise to a disclosure of personal or sensitive communications and certainly that would be a relevant consideration in assessing whether they should ultimately be produced to the Applicant.

I am persuaded that those conversations, if they exist may well be relevant to issues at this trial.

Absent inspecting the electronic record and viewing any photographs of videos taken that evening, it is impossible to determine whether production is necessary to allow the Applicant to make full answer and defence. [ 20 ] I advised counsel through email that I was persuaded that the electronic messages exchanged by the three witnesses prior to their attendance at the apartment and while the complainant remained at the apartment as well as any photographs taken by the three witnesses during that time period should be produced to me to review. [ 21 ] It was understood that, should I determine that there were records of that nature in the possession of all or any of the witnesses, I would then hear submissions with respect to their production to the Applicant. [ 22 ] In order to assist all parties in making submissions, I have summarized as generally as possible those materials which could be said to relate to the request for production made by the Applicant. [ 23 ] The records provided by counsel for M.M., include five photographs and one very brief video, all of which appear to have been created that evening.

They are not sexual in nature.

There are no text messages, although there is some writing on four of the five photographs. [ 24 ] The records provided by counsel for K.D.B. contain a series of text messages which clearly occurred between her and M.M. after the events in the apartment had concluded. (they do not relate in any way to discussions about how they would present their age to the Applicant and there is nothing in the discussions which would assist in assessing the complainant’s level of intoxication) [ 25 ] There are also two text messages between the complainant and A.D.B one of which appears to have the time stamp of 7:55pm on March 13 th.

Both text messages seemingly relate to arrangements for the evening and one sets out the address where presumably the complainant and M.M. were to go. [ 26 ] There is a photograph of a young woman and a short video, showing 2 young women. I believe the first photograph is the complainant and the second is the complainant and M.M. Clearly not having seen any of these women, I am making some assumptions. The images appear to have been generated during the evening in question.

They are not sexual in nature and are not in my view images that would be described as private or sensitive. [ 27 ] I have also reviewed the materials provided by counsel for A.D.B. They comprise a series of photographs which appear to have been taken at the Applicant’s apartment. They depict all 3 women, alone and together. Again, they are not sexual in nature and in my view again would not be described as depicting images that were private or sensitive.

There is also what appears to be a screen shot of a message from Uber or its equivalent relating to a pickup at [ … ] Street. [ 28 ] I am happy to hear submissions on the issue of production of some or all of those records to the Applicant.

Released: January 19, 2022 Signed: Justice L. Botham