R. v. NK, 2022 NSSC 84

SUPREME COURT OF Nova Scotia Citation: R. v. NK , 2022 NSSC 84 Date: 20220330 Docket: CRH 505345 Registry: Halifax Between: Her Majesty the Queen v. NK Restriction on Publication of any information that could identify the victim or witnesses and contents of an application: s. 486.4 , s. 486.5 and 278.9 C.C. Decision on Production of Records Judge: The Honourable Justice Peter P. Rosinski Heard: February 17 and 18, 2022 in Halifax, Nova Scotia Counsel: Carla Ball and Jennifer Crewe, for the Crown Thomas Morehouse, for the Defence Carbo Kwan, for LY Publication prohibited 278.9

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

a) the contents of an application made under

section 278.3; (

b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or (

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. Order restricting publication - sexual offences 486.4

(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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). Mandatory order on application

(2) 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. Victim under 18 — other offences

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. Mandatory order on application

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order. Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Justice system participants

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Offences

(2.1) The offences for the purposes of subsection (2) are (

a) an offence under

section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(

b) a terrorism offence; (

c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (

d) an offence under subsection 21(1) or

section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). Limitation

(3) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community. Application and notice

(4) An applicant for an order shall (

a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (

b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. Grounds

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. Hearing may be held

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. Factors to be considered

(7) In determining whether to make an order, the judge or justice shall consider (

a) the right to a fair and public hearing; (

b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (

c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (

d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (

e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (

f) the salutary and deleterious effects of the proposed order; (

g) the impact of the proposed order on the freedom of expression of those affected by it; and (

h) any other factor that the judge or justice considers relevant. Conditions

(8) An order may be subject to any conditions that the judge or justice thinks fit. Publication prohibited

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (

a) the contents of an application; (

b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (

c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. By the Court: Introduction

[1] NK is charged with sexually assaulting LY on October 18, 2019. His trial before me is scheduled for June 6, 2022.[1] [2] After October 18, 2019, LY had communications with RT and TFO regarding NK.

These communications were transmitted bytext messages and the Snapchat application (photos). [3] NK has applied to this Court for an order that LY, RT, and TFO produce the records in their possession – be they textmessages, photographs or a combination.[2] [4] NK argues that these each are a “record” as defined in s. 278.1 CC, and records are “likely relevant to an issue at trial” and that“production of the record is necessary in the interests of justice” - s. 278.3 and 278.5 Criminal Code [CC].[3] [5] The “likely relevant” standard has been described in R. v.

Mills, (SCC), [1999] 3 SCR 668, where it alsoreferenced the various interests arising in such situations: 73 This spectrum of interests reflected in the principles of fundamental justice highlights the need to avoid viewing anyparticular principle in isolation from the others. As La Forest J. stated in R. v.

Harrer, (SCC), [1995] 3 S.C.R.562 (S.C.C.) at para. 14: … The ability to make full answer and defence, as a principle of fundamental justice, must therefore be understood in light ofother principles of fundamental justice which may embrace interests and perspectives beyond those of the accused. 74 One example is society's interest in having the trial process arrive at the truth. …Similarly, the accused has never had aright to irrelevant evidence.

In other words, the accused is not permitted to distort the truth-seeking function of the trial process. … 76 Several principles regarding the right to make full answer and defence emerge from the preceding discussion. First, theright to make full answer and defence is crucial to ensuring that the innocent are not convicted.

To that end, courts must consider thedanger of placing the accused in a Catch-22 situation as a condition of making full answer and defence and will even override competingconsiderations in order to protect the right to make full answer and defence in certain circumstances, such as the "innocence at stake"exception to informer privilege. Second, the accused's right must be defined in a context that includes other principles of fundamentaljustice and Charter provisions.

Third, full answer and defence does not include the right to evidence that would distort the search fortruth inherent in the trial process. … (ii) Privacy 77 … Therefore an order for the production of records made pursuant to ss. 278.1 to 278.91 of the Criminal Code, falls within theambit of s. 8. … 80 …These privacy concerns are at their strongest where aspects of one's individual identity are at stake, such as in the contextof information "about one's lifestyle, intimate relations or political or religious opinions": Thomson Newspapers, supra, at pp. 517-18, per La Forest J., cited with approval in Baron, supra, at pp. 444-45. 81 The significance of these privacy concerns should not be understated.

Many commentators have noted that privacy is alsonecessarily related to many fundamental human relations. As Charles Fried states in "Privacy" (1967-68), 77 Yale L.J. 475, at pp.477-8: To respect, love, trust, feel affection for others and to regard ourselves as the objects of love, trust, and affection is at the heart ofour notion of ourselves as persons among persons, and privacy is the necessary atmosphere for these attitudes and actions, asoxygen is for combustion.

See also David Feldman, "Privacy-related Rights: Their Social Value", in Peter Birks, ed., Privacy and Loyalty, (1997), 15, at pp. 26-27,and James Rachel, "Why Privacy is Important" (1975), 4 Philosophy & Public Affairs 323. This Court recognized these fundamentalaspects of privacy in R. v.

Plant, (SCC), [1993] 3 S.C.R. 281 (S.C.C.) where Sopinka J., for the majority, stated, atp. 293: In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect abiographical core of personal information which individuals in a free and democratic society would wish to maintain and controlfrom dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle andpersonal choices of the individual. [Emphasis added.] … (

c) Summary 94 In

summary, the following broad considerations apply to the definition of the rights at stake in this appeal. The right of the accusedto make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain accessto information contained in the private records of complainants and witnesses. Rather, the scope of the right to make full answer anddefence must be determined in light of privacy and equality rights of complainants and witnesses. It is clear that the right to full answer

and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount. On the other hand, where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.

Most cases, however, will not be so clear, and in assessing applications for production courts must determine the weight to be granted to the interests protected by privacy and full answer and defence in the particular circumstances of each case. Full answer and defence will be more centrally implicated where the information contained in a record is part of the case to meet or where its potential probative value is high.

A complainant's privacy interest is very high where the confidential information contained in a record concerns the complainant's personal identity or where the confidentiality of the record is vital to protect a therapeutic relationship. … 124 Both the majority and minority of this Court in O'Connor , supra , held that records must be produced to the judge for inspection if the accused can demonstrate that the information is "likely to be relevant": O'Connor , supra , at para. 19, per Lamer C.J. and Sopinka J., and at para 138, per L'Heureux-Dubé J.

The Court defined the standard of likely relevance as "a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify " (emphasis in the original) (para. 22). [ 6 ] Regarding the “necessary in the interests of justice” criterion, the court in Mills stated: 131 The requirement that production be "necessary in the interests of justice" at this stage refers to whether production to the judge is necessary in the interests of justice. That is a phrase capable of encompassing a great deal.

It permits the judge to look at factors other than relevancy, like the privacy rights of complainants and witnesses, in deciding whether to order production to himself or herself. Where the privacy right in a record is strong and the record is of low probative value or relates to a peripheral issue, the judge might decide that non-disclosure will not prejudice the accused's right to full answer and defence and dismiss the application for production. 132 However, pursuant to the first factor of s. 278.5(2), the judge must consider the accused's right to make full answer and defence.

If the judge concludes that it is necessary to examine the documents at issue in order to determine whether they should be produced to enable the accused to make full answer and defence, then production to the judge is "necessary in the interests of justice". This answers the argument that s. 278.5(1) may require the judge to decide against production to himself or herself of documents necessary to the defence, and hence foreclose production to the accused in an unconstitutional manner.

If a record is established to be "likely relevant" and, after considering the various factors, the judge is left uncertain about whether its production is necessary to make full answer and defence, then the judge should rule in favour of inspecting the document . As L'Heureux- Dubé J. stated in O'Connor , supra , at para. 152, [i]n borderline cases, the judge should err on the side of production to the court .

The interests of justice require nothing less. 133 The criterion in s. 278.5 that production must be "necessary in the interests of justice" invests trial judges with the discretion to consider the full range of rights and interests at issue before ordering production, in a manner scrupulously respectful of the requirements of the Charter … … 138 … It can never be in the interests of justice for an accused to be denied the right to make full answer and defence and, pursuant to s. 278.5(2) the trial judge is merely directed to "consider" and "take into account" the factors and rights listed.

Where the record sought can be established as "likely relevant", the judge must consider the rights and interests of all those affected by production and decide whether it is necessary in the interests of justice that he or she take the next step of viewing the documents.

If in doubt, the interests of justice require that the judge take that step . [My bolding added] [ 7 ] Such applications are split into two stages. [4] [ 8 ] This decision concerns both stage 1 and stage 2. [ 9 ] The first portion hereof are my reasons in relation to the stage 1 conclusion that the records ought to be produced to me for my review. Stage 1 [ 10 ] The simple question at stage 1 is whether the evidence NK puts before me satisfies the criteria in

section 278.5 that the purported record is a “record”, that is “ likely relevant to an issue at trial”, and its production is “ necessary in the interests of justice” considering the factors in

section 278.5(2). [ 11 ] If so, I must review such records (in the absence of the parties), and after further submissions from the parties in response to (my practice to give them) a generalized

summary of the content of the records I have reviewed; I must consider whether to order production, in whole or in part, thereof for inspection by NK. [5] The records put before me as set out in the application [ 12 ] NK’s amended application (December 29, 2021) seeks the following records: from the complainant, LY -

i) all communication and records of communication between her and RT with respect to the applicant and with respect to the alleged October 18, 2019, incident that forms the basis of the charge before the court [these have effectively been supplied by RT];

ii) all communication and records of communication between her and TFO with respect to the applicant and with respect to the alleged October 18, 2019, incident that forms the basis of the charge before the court; iii) all photographs taken by her between October 17, 2019, and October 19, 2019, and all photographs in her possession taken by any party between October 17, 2019, and October 19, 2019; and iv) all screenshots of communication between her and the applicant, between her and RT with respect to the applicant, and between her and TFO with respect to the applicant taken by her. From the recordholder, TFO -

i) all communication and records of communication between her and the complainant LY with respect to the applicant and with respect to the alleged October 18, 2019, incident that forms the basis of the charge before the court. [ 13 ] NK’s application also states: And further take notice that the above records and any other notes or accounts of the alleged incident are relevant to :

i) the complainant’s credibility ; ii) the reliability of the complainant’s evidence ; and iii) the applicant’s right to make full answer and defence to these charges. [6] The position of the parties [ 14 ] NK confirmed at the hearing that he is only seeking: 1. any communication and records of communication exchanged between LY and TFO in relation to NK and the events of October 18, 2019; 2. all screenshots taken by LY of communication between LY and NK, or LY and TFO with respect to NK; 3. all photos LY took between October 17 and 19 2019, and all photos in her possession taken by any party between those same dates. [ 15 ] I will refer to items 1 and 2 collectively as “the text messages” and item 3 as “the photos”.

NK [ 16 ] He notes that after the offence date – October 18, 2019 – LY did not make a complaint to the police until March 2020. [ 17 ] NK argues that at stage 1 of his s. 278.3 CC application he has satisfied the criteria in s. 278.5 CC , and more specifically that “the record is likely relevant to an issue at trial or to the competence of a witness to testify; and the production of the record is necessary in the interests of justice”. [ 18 ] NK argues that there is “likely relevance” of the records here generally because the circumstances of the allegations include: [7] • LY and NK had known each other since June 2019, and had direct communications in August 2019 • that this is a “he said/she said” case – there were no other witnesses to the alleged incident, nor any witnesses capable of directly corroborating the allegations put forward by the LY • on October 18, 2019, in downtown Halifax, LY had been celebrating a friend’s birthday and ingesting significant quantities of alcohol and cannabis products, when she met NK - they agreed to go back to his place • LY in her police statement expressly admitted to having significant memory/recollection issues with respect to the incident alleged (e.g. from her March 20, 2020, police statement: “… I don’t remember most of that night.

But parts of it are still coming back.

And I just remember that I didn’t want to do that.”) [8] • LY alleges that over a short time interval NK penetrated her vaginally – NK’s brief states that “the complainant suggests that she did not say ‘yes’ and she did not say ‘no’ “ – March 4, 2020 statement at page 5” [9] • RT, a friend to LY who was also present at the birthday party celebrations on October 18, 2019, stated to police that LY I told her a day or two after the alleged incident that she and NK did not engage in penetrative vaginal intercourse (“she told me they didn’t do much… I believe she told me that they didn’t actually, like, have intercourse, but… did other stuff…”) • LY was previously acquainted with TFO, and only in December 2019 did LY discover from TFO, that TFO had previously had an intimate relationship with NK (which TFO characterized in unfavourable terms) [10] • LY had repeated ongoing contacts with TFO after October 18, 2019, and up until she made her complaint to police in March 2020 – specifically in her police statement she suggested that in the days before deciding to file her complaint she had communication with TFO and was aware that “he has done a lot of things to her.

She is currently – there is cases on him right now with her. And that’s how I found out that he – this is like a game to him. He has done it before.” • LY stated to police that she relied on photographs taken on the evening in question and saved on her phone for the purpose of refreshing her memory with respect to the date of the incident [ 19 ] Regarding the text messages , NK emphasizes that they are likely relevant to the credibility (reliability and honesty of LY) because, in particular:

(

a) the extended communications between LY and TFO, and the fact that both have made criminal allegations against NK (as LY stated in her March 4, 2020, statement: “ this is like a game to him. He has done it before.”) There is a real possibility that LY may have either had a motive to advertently exaggerate the circumstances of her complaint against NK or her memory of the alleged circumstances and motivation for reporting a complaint to the police about NK may inadvertently have been tainted by TFO’s communications with her. [11] (

b) it allows a comparison between these texts and LY’s two police statements in her testimony which could provide fertile bases for cross-examination of her at trial which may reveal inconsistencies in her accounts of what happened. [ 20 ] Regarding the photographs , NK emphasizes that they are likely relevant because:

a) LY has said in her police statement that she resorted to the photographs in order to ascertain the date of the alleged offence, and it can readily be inferred that she also used it to refresh her memory of the events of October 17 – 19, 2019. NK says that when a witness refreshes their memory, even if before giving a police statement, it is important for the defendant to have the material/item that refreshed the witness’s memory.

This is particularly an acute concern here where the delay between the incident and LY’s police statement is five months. [12] The Crown’s position [ 21 ] The Crown acknowledged that arguably the text messages could be found to be “likely relevant”, although it did not agree that it was as a result of NK’s argument that there may have been advertent tainting of LY’s memory.

However, it acknowledged that inadvertent tainting could be inferred, because the court could consider that very shortly after October 18, 2019 alleged incident (involving sexual intercourse), LY had communicated with RT about the extent of the relevant sexual activity between NK and LY, and characterized it as not amounting to sexual intercourse; and I understand the Crown to accept that communication between TFO and LY could lead one to infer the possibility of inadvertent tainting of LY’s perception and memory of the events of October 18, 2019. [ 22 ] On the other hand, as I understand its argument, the Crown says that the photographs do not rise to the level of “likely relevant”.

The request for all photographs taken by and in possession of LY is overreach – and it is overreach because photographs cannot be presumed to have relevant information. They are mere snippets in time, without context. LY’s position [ 23 ] Ms. Kwan, as counsel for LY, argued that the evidence presented from LY’s statement is vague about the precise nature of her discussions with TFO – there is no express statement that would suggest any form of collusion between LY and TFO.

Moreover, the evidence does not suggest expressly or by reasonable inference that LY’s communications with TFO, including in the weeks leading up to her complaint to police in March 2020, motivated LY to make her complaint to police. Their friendship predated October 18, 2019, and therefore it is not unexpected that they would from time to time discuss their personal life, which is not relevant to these criminal allegations. Consequently, NK’s request for production of the texts is akin to a “fishing expedition”- and should be rejected. [ 24 ] Regarding the photographs, Ms.

Kwan contests the logic of NK’s suggestion that review by me is warranted because LY’s refreshing her memory from her own photographs is akin to refreshing her memory from a witness statement. Ms. Kwan says they are not of the same nature and weight, as a witness refreshing their testimony from documentation while testifying in court. [ 25 ] Moreover, presuming the records contain personal information for which there is a reasonable expectation of privacy, Ms. Kwan emphasized that even producing the documents to me for inspection is a breach of that privacy, and unwarranted here.

Why I conclude at Stage 1 that there is “likely relevance” for the requested items [ 26 ] As I stated in R v NK , 2021 NSSC 334 : [15] In assessing whether the records are “likely relevant to an issue at trial”, I must consider (s. 278.5(2) and s. 278.7(2) CC ): “the salutary and deleterious effects of the determination on the accused’s rights to make full answer and defence and on the right to privacy, personal security and equality of the complainant or witness.. .and any other person to whom the record relates. In particular, the judge shall take the following factors into account: 1.

The extent to which the record is necessary for the accused to make full answer and defence; 2. The probative value of the record; 3. The nature and extent of the reasonable expectation of privacy with respect to the record; 4. Whether production of the record is based on a discriminatory belief or bias; 5. The potential prejudice to the personal dignity and right of privacy of any person to whom the record relates; 6. Society’s interest in encouraging the reporting of sexual offences; 7. Society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; 8.

The effect of the determination on the integrity of the trial process. [16] I must also consider the following as “insufficient grounds” on their own: 278.3(4) Insufficient grounds

Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likelyrelevant to an issue at trial or to the competence of a witness to testify: (

a) that the record exists; (

b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving; (

c) that the record relates to the incident that is the subject-matter of the proceedings; (

d) that the record may disclose a prior inconsistent statement of the complainant or witness; (

e) that the record may relate to the credibility of the complainant or witness; (

f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witnesshas received or is receiving psychiatric treatment. therapy or counselling: (

g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused: (

h) that the record relates to the sexual activity of the complainant with any person. including the accused: (

i) that the record relates to the presence or absence of a recent complaint: (

j) that the record relates to the complainants sexual reputation: or (

k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against theaccused. [My bolding added] [17] I interpret this to mean that none of these assertions alone, or in combination, without other legitimate grounds being raised by anaccused, will suffice to establish that a record is likely relevant to an issue at trial. Furthermore, the use of language, including “may...”,suggests that if the applicant’s request rises only’ to the level of a “fishing expedition”, that ground(

s) is insufficient. On the other hand,if the request is supported by facts from which, directly or indirectly, the court can conclude that the record sought is “likely relevant toany issue at trial” and if its production is necessary in the interest of justice, then it must be produced. [18] In R v. KC, 2021 ONCA 401, both the majority and dissenting reasons (at paras. 29, 102-103 and 126) agreed that the “likelyrelevant” standard is aptly described as: ... is a threshold higher than the threshold for Crown disclosure under R. v.

Stinchcombe, [1991] 3 5CR 326, where relevance means“may be useful to the defence”… However, the threshold for “likely relevance” is not an onerous burden .... Under s. 278.5. “likelyrelevance” requires “a reasonable possibility that the information is logically probative to an issue at trial or the competence of awitness to testify” … [My italicization added] [27] The “likely relevant” standard is not an onerous one, particularly at stage 1 where the materials are provided to the judge forreview.

Arguably, this threshold is met when the materials in dispute can provide some added information not already available to thedefence or have some potential impeachment value. [28] I am mindful of Justice Flinn’s statements in R v DWL, 2001 NSCA 111, in relation to the diary of a complainant, which wassuggested to be relevant, and therefore should be produced to the defendant:[13] 24 Further, an assertion that the diaries exist, and an assertion as to what those diaries may disclose, are not sufficient on their own toestablish that the diaries are likely relevant to an issue at trial or to the competence of a witness to testify. 25 In R. v.

Mills, (SCC), [1999] 3 S.C.R. 668 (S.C.C.) McLachlin and Iacobucci, JJ. said at para. 118: It does not entirely prevent an accused from relying on the factors listed, but simply prevents reliance on bare "assertions" of the listedmatters, where there is no other evidence and they stand "on their own". . . .

The purpose and wording of s. 278.3 do not prevent an accused from relying on the assertions set out in s. 278.3(4) where there is anevidentiary or informational foundation to suggest that they may be related to likely relevance. (An exception is "recent complaint"which has been abolished by the jurisprudence and cannot be relied on in any event, quite apart from the section.) The

section requiresonly that the accused be able to point to case specific evidence or information to show that the record in issue is likely relevant to anissue at trial or the competence of a witness to testify. 26 This test was followed by the Ontario Court of Appeal in R. v. Batte (2000), (ON CA), 49 O.R. (3d)321 (Ont. C.A.). While the case fell to be decided on common-law principles (because the matter was heard by the Motions Courtbefore the enactment of s. 278 of the Code) Justice Doherty noted that the applicable law in respect of likely relevance had notchanged. Writing for the unanimous court, Justice Doherty said at § 75:

The determination of likely relevance under the common law scheme requires the same approach. The mere assertion that a record is relevant to credibility is not enough. An accused must point to some "case specific evidence or information" to justify that assertion.

In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value. [My bolding and italics added] [ 29 ] I am satisfied that NK has established there is sufficient evidence on which I can conclude that the records sought are “likely relevant to an issue at trial”. [14] Why I conclude at Stage 1 that production of the record is necessary in the interests of justice [ 30 ] Given that I am without the benefit of viewing the materials sought, it is generally accepted that, if at all possible to do so I should infer that the materials contain personal information for which there is a reasonable expectation of privacy, and review them myself- “mere assertions” are insufficient; but neither is the burden “onerous”. [15] [ 31 ] Based on the evidence presented, I am satisfied that it is necessary for me to examine the documents/photographs in order to determine whether they should be produced to enable NK to make full answer and defence. [ 32 ] Doing so will allow me to conduct a more precise calibration regarding whether the records sought should be produced to the accused.

Conclusion [ 33 ] I am satisfied that both the texts and photographs should be produced to the court for further examination. [16] Stage 2 [17] [ 34 ] By my comments in open court, I did identify with greater precision the materials provided by the record-holder LY for the parties before they made their submissions at stage 2: 1. two photographs taken on or about October 18, 2019 (which are immaterial to the proceedings) – one is a head and shoulders photo of only the complainant LY ; the second shows a hand holding an un-opened wine beverage entitled “girls’ night out” (“the photographs”); 2. there is a large hardcopy folio of screenshots of Snapchat communications between LY and TFO. [18] [ 35 ] I will refer to these as “text messages”. [ 36 ] They occurred between LY and TFO over the following time periods: 1.

December 20 – 28, 2019; 2. January 23 - 26, 2020; 3. March 2 - April 6, 2020; 4. July 20 - August 10, 2020; 5. November 4 - 5, 2020; 6. July 16 - 17, 2021. [ 37 ] In an effort to allow counsel to make more fulsome arguments, I characterized the contents of the text messages generally as follows: 1. those involving references to third parties and their personal circumstances which are only mentioned incidentally in some communications by TFO and LY (and if materials are produced can be redacted pursuant to

section 278.7(3) CC ); 2. “commiseration conversations” -which involved sharing the history of their lives and each of their general history/experiences with NK, including their past and present feelings toward NK; 3. communications involving incidental references to their own indirect present knowledge/belief of NK’s intimate relationships with other women , including their past and present feelings toward NK; 4. references by LY to the circumstances of the incident underlying the sexual assault charge against NK, in which she is the complainant. [ 38 ] For general context I include here: TFO is the complainant in an ongoing sexual assault prosecution against NK in a separate proceeding (her relevant contacts with him arise between 2017 and 2019).

The evidence and representations before me do not suggest that LY is in any way involved in that prosecution or that TFO is a witness in the sexual assault prosecution in which LY is the complainant. TFO and LY were intermittent acquaintances before the alleged sexual assault by NK upon LY on October 18, 2019. LY was unaware

until December 2019, that TFO had been in a relationship with NK before LY became involved with NK in August 2019. [39] As in stage 1, I must consider, whether each of the proposed text messages and photographs constitute a “record” as defined insection 278.1 CC.

At stage 2, I am in a much better position to determine that issue because I have the specific text messages andphotographs before me. [40] I am satisfied that the photographs are not a “record”, and they do not contain any “personal information”.[19] Are any of the text messages a “record”? [41] “Record” is defined in s. 278.1 CC as: For the purposes of sections 278.2 to 278.92, ‘record’ means any form of record that contains personal information for which there is areasonable 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 ordisclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by personsresponsible for the investigation or prosecution of the offences. [42] Do the text messages contain personal information for which there is a ‘reasonable expectation of privacy”?[20] [43] As a preface, the court must be mindful of the comments in Mills regarding the parameters of the reasonable expectation ofprivacy in this specific case: 108 This argument erroneously equates Crown possession or control with a total loss of any reasonable expectation of privacy.Privacy is not an all or nothing right.

It does not follow from the fact that the Crown has possession of the records that anyreasonable expectation of privacy disappears. Privacy interests in modern society include the reasonable expectation that privateinformation will remain confidential to the persons to whom and restricted to the purposes for which it wasdivulged, Dyment, supra, at p. 429.

Where private information is disclosed to individuals outside of those to whom, or forpurposes other than for which, it was originally divulged, the person to whom the information pertains may still hold areasonable expectation of privacy in this information, R. v. Boudreau (1998), (ON SC), 56 C.R.R. (2d)345 (Ont. Gen. Div.) at para. 18. Third-party records may fall into the possession of the Crown without the knowledge, consent, orassistance of the complainant or witness.

Where the complainant or witness has not expressly waived her privacy right, Parliament canlegitimately take steps to protect those privacy rights. Such protection is to be found in the procedures for production set out in s. 278.5and s. 278.7 of the Bill. [My bolding added] [44] Firstly, let me say that I am satisfied that all these communications are a “record”. [45] Justice Karakatsanis’s comments in R v Quesnelle, 2014 SCC 46, set out the basic principles.[21] As she stated for the court: 20 The determination of whether a document counts as a "record" involves two inquiries.

First, does the document contain personalinformation for which there is a reasonable expectation of privacy? Second, does it fall into the exemption for investigatory andprosecutorial documents? I consider these questions in turn. Documents Attracting a Reasonable Expectation of Privacy

Section 278.1 Requires a Categorical Approach 21 Under the first step of the Mills regime, the trial judge makes a preliminary determination of whether a document is a"record" covered by the regime, without seeing the specific document. Only if the judge decides that the document is likely relevantto an issue at trial or to the competence of a witness to testify and that production to the court is necessary in the interests of justice willthe judge then have the opportunity to view and assess the particular document.

Therefore, the judge will usually determine whether arecord "contains personal information for which there is a reasonable expectation of privacy", on the basis of the type ofdocument at issue. 22 The definition of "record" is broad and non-exhaustive.

Section 278.1 provides an illustrative list of some of the types ofrecords that usually give rise to a reasonable expectation of privacy. However, documents that do not fall into the listed categorieswill still be covered by the Mills regime if they contain information that gives rise to a reasonable expectation of privacy. 23 The question here is whether the trial judge committed a reversible error at the preliminary stage by holding that police occurrencereports relating to the complainant were "records" because they generally contain information that gives rise to a reasonable expectationof privacy.

The Court of Appeal concluded that the trial judge erred because the definition of "record" under s.278.1 contemplates the types of personal information disclosed in the context of a "trust-like, confidential, or therapeuticrelationship" and which an individual would "seek to withhold from the state" (paras. 32-33). In my view, such a restrictedapproach is not warranted. The trial judge was right to treat the reports as "records" under the Mills regime because the reportsgenerally contain information in which there is a reasonable expectation of privacy. (

b) Reasonable Expectation of Privacy 24 In order for a document to constitute a "record" and therefore fall within the Mills regime it must be a "record that containspersonal information for which there is a reasonable expectation of privacy": s. 278.1. 25 The appellant submits that police occurrence reports will often contain deeply personal and potentially embarrassing

information, and that witnesses and complainants retain a privacy interest in the reports. The subject of an occurrence reportwill not expect the report to be disclosed to impeach his or her credibility in an unrelated case. 26 The respondent agrees with the Court of Appeal that police occurrence reports do not "implicate the types of privacy interestsenvisioned in s. 278.1 or in Mills" (R.F., at para. 58, citing Court of Appeal reasons, at para. 41).

The Court of Appeal observed thatthe complainant cannot have a subjective expectation of privacy in previous complaints to police: she will know, at the time ofmaking a complaint to police, that the information she discloses will end up in a public trial. Moreover, the victim of an attack does notspeak to police in the context of a trust-like, confidential, or therapeutic relationship.

General Principles 27 The assessment of whether there is a reasonable expectation of privacy for purposes of s. 278.1 of the Criminal Code drawson the jurisprudence applying s. 8 of the Canadian Charter of Rights and Freedoms: see Mills, at para. 99. That jurisprudenceestablishes that expectations of privacy must be assessed in light of the "totality of the circumstances" (R. v. Patrick, 2009 SCC 17,[2009] 1 S.C.R. 579 (S.C.C.), at para. 26; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128 (S.C.C.), at para. 45; R. v.Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 (S.C.C.), at para. 19).

The circumstances (or nature of the relationship) in whichinformation is shared is not determinative: the reasonable expectation of privacy is not limited to trust-like, confidential, ortherapeutic relationships. 28 Unlike much of the jurisprudence under s. 8 of the Charter, the analysis of the reasonable expectation of privacy in this case doesnot concern the right to be free from unreasonable intrusion by the state.

Rather, the question is whether it is reasonable to expect thatthe state will keep information that it has legitimately acquired private from other private individuals. 29 A reasonable expectation of privacy is not an all or nothing concept: Mills, at para. 108. A person may have a reasonableexpectation that the state will not have access to her hotel room, even if she fully expects hotel staff to enter the premises: R. v. Buhay,2003 SCC 30, [2003] 1 S.C.R. 631 (S.C.C.), at para. 22, discussing R. v. Dinh, 2001 ABPC 48, 42 C.R. (5th) 318 (Alta. Prov. Ct.) (Alta.Prov. Ct.).

Equally, a person may divulge information to an individual or an organization with the expectation that it be used onlyfor a specific purpose: R. v. Dyment, (SCC), [1988] 2 S.C.R. 417 (S.C.C.), at pp. 429-30. The same principleapplies to disclosure to the police. 30 In this case, the question is whether the subjects of police occurrence reports could reasonably expect the police tosafeguard their private information, unless and until disclosure is justified. After describing the information contained in thereports, I will discuss the privacy interests engaged by that information.

Finally, I will address the implications arising from the fact thatthe reports are in the hands of police. … 34 The disclosure of the information described above engages complainants' and witnesses' "[i]nformational privacy", "the claim ofindividuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicatedto others" (Tessling, at para. 23, quoting A. F. Westin, Privacy and Freedom (1970), at p. 7).

As L'Heureux-Dubé J. observed in R. v.O'Connor, at para. 119: Although it may appear trite to say so, I underline that when a private document or record is revealed and the reasonable expectation ofprivacy therein is thereby displaced, the invasion is not with respect to the particular document or record in question.

Rather, it is aninvasion of the dignity and self-worth of the individual, who enjoys the right to privacy as an essential aspect of his or her liberty in a freeand democratic society. … 37 It bears repeating that privacy is not an all or nothing concept; rather, "[p]rivacy interests in modern society include thereasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposesfor which it was divulged" (Mills, at para. 108).

Consequently, the fact that information about a person has been disclosed to a thirdparty does not destroy that person's privacy interests. Because the contents of occurrence reports will be disclosedunder certain circumstances does not mean that there is not a reasonable expectation of privacy in those records. … 44 Fundamentally, the privacy analysis turns on a normative question of whether we, as a society, should expect that policeoccurrence reports will be kept private.

Given the sensitive nature of the information frequently contained in such reports, and theimpact that their disclosure can have on the privacy interests of complainants and witnesses, it seems to me that there will generally be areasonable expectation of privacy in police occurrence reports. [My bolding added] [46] The Crown cited R v MS, 2019 ONCJ 670, which, while it deals with materials in the possession of an accused and theprocesses arising from sections 278.92 and 278.93 CC, nevertheless provides a helpful analysis in assessing whether there is a reasonableexpectation of privacy in relation to such potential records.

Judge Chapman stated: 50 The following factors gleaned from the jurisprudence concerning privacy principles more generally, though by no meansexhaustive, are relevant to a consideration of whether or not a particular record in the possession of the accused is a private record withinthe meaning of s. 278.1:

(1) Is it a record akin to those enumerated in the section?

(2) Is the information in the record akin to that which one might reasonably expect to find in the records that are enumerated in the section?

(3) How was the information obtained? Was it voluntarily surrendered or surreptitiously recorded in the form of a permanent record?

(4) For what purpose was the information provided to the accused?

(5) Was the communication public or semi-public or between two private individuals?

(6) Was there an express desire that the communication remain private or can such a desire be reasonably inferred from all of the circumstances?

(7) How many other people were privy to the communication?

(8) If it is not sexual history, is it something akin to sexual history?

(9) If it is not akin to sexual history, is it the kind of information that has historically, and improperly, been used to discredit sexual assault complainants? Such as their street-involved status or (non-sexual) mistreatment by others?

(10) Is it information that might be considered biographical core information as that concept is explained in Plant , Mills and all subsequent case law?

(11) In relation to photos/videos where were they taken? By whom were they taken? For what purpose were they taken and how did the accused end up with them?

(12) For social media postings, what is the nature of the social media application in question? Is it designed for public sharing of information or immediate destruction of the communication once sent?

(13) Is the social media posting of a child or an adult?

(14) What is the nature of the relationship between the parties that are communicating? For example, is it a relationship of trust or authority?

(15) Whose account was the information taken from and what are the privacy settings?

(16) Did the accused gain access to the account through fraud or deceit? [ 47 ] In R v TA , 2020 ONSC 2613 , Justice Gomery stated: 21 In assessing whether a complainant has a reasonable expectation of privacy with respect to a record, a judge should therefore weigh the type and nature of the information it contains, the circumstances in which the record was created, how the accused acquired the record and whether the complainant shared it with other people. … Conclusions on applicable legal principles 36 Following the principles explored at length in W.M. , Mai and M.S., subject to the reservations addressed above, I will proceed as follows:

(1) First, I must determine whether the records are subject to s. 276. If they contain information relating to a sexual activity, they are presumptively inadmissible under that section, and may not be relied on by the accused absent a successful application under s. 278.93.

(2) If they are not subject to s. 276 and are not one of the categories of records specifically listed in s. 278.1, I must determine whether the records contain any personal information relating to the complainant. If not, they do not meet the definition of records under that section, and the analysis can end there.

(3) If the records contain personal information, I must determine whether the complainant has a reasonable expectation of privacy in them, taking into account factors such as: • The content of the records; • The means by which the accused acquired them, and the circumstances in which this happened; • Whether the records were shared only with the accused or were also disclosed to others; and • The nature of the relationship between the accused and the complainant when the records were shared.

(4) If I find that the records contain personal information in respect of which the complainant has a reasonable expectation of privacy, I must find that they meet the definition of records under s. 278.1 and are presumptively inadmissible.

3. Application of legal principles 37 I find that none of the messages were made for a sexual purpose and their content is not of a sexual nature. They are accordinglynot subject to the evidentiary rules set out in s. 276. 38 I find that the first item, the chat confirming plans to meet in Fall 2016, does not contain personal information. There isnothing in the language or content of this set of messages that provides a reader with any insight into the Complainant's feelings,personal characteristics, private interactions or relationships. The subject matter of the chat is completely mundane.

As a result, thechat falls outside the ambit of s. 278.1. 39 The second and third items contain personal information. As held by the Supreme Court of Canada in R. v. Mills, (SCC), [1999] 3 S.C.R. 668 (S.C.C.), at p. 722, quoting from its earlier decision in Thomson Newspapers Ltd. v.

Canada(Director of Investigation and Research, Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R.425 (S.C.C.), privacy concerns "are at their strongest where aspects of one's individual identity are at stake, such as in the contextof information 'about one's lifestyle, intimate relations or political or religious opinions'".

As found in in M.S., at para. 72,messages bearing on "the parties' thoughts, aspirations, feelings, friendships, social interactions and the details of their dailyactivities" are inherently personal. 40 In items 2 and 3, the Complainant expressed warm feelings for the Defendant, referred to him using endearments and nicknames,described him in a complimentary way and said she was grateful for their relationship. These chats provide insight into theComplainant's feelings for and her relationship with the Defendant, her personal tastes and preferences, and her interactionswith him.

This is, in my view, personal information. 41 The nature of the messages, the means by which they sent, and the circumstances in which the information was shared withthe Defendant, all weigh in favour of a finding that the Complainant has a reasonable expectation of privacy in the chats. Theywere conducted over a private platform.

There is no evidence that the Complainant expected anyone else to see these messages,that she shared them with anyone else or that she expected the Defendant to disclose them to anyone else. 42 The relationship between the Complainant and the Defendant when the messages were exchanged also argues for areasonable expectation of privacy. They had been romantically involved for several months, ending in Spring 2014. After they stoppeddating, they stayed in touch.

The contents of the messages suggest that they were on friendly terms. 43 I accordingly conclude that the Complainant has a reasonable expectation of privacy with respect to the chats in items 2 and 3.Items 2 and 3 are therefore records for the purpose of s. 278.1 and inadmissible under s. 278.92, unless the Defendant appliessuccessfully to have them admitted into evidence using the procedure set out at s. 278.93. [My bolding added] [48] I also find of assistance Justice Horsman’s reasons in R v RW, 2021 BCSC 1672: 17 It is common ground between the parties that an accused may apply for direction from the court as to whether documentssought to be adduced in evidence fall within the scope of s. 278.1.

In the absence of a prescribed procedure in the Code for suchan application, the courts have adopted different procedures. In some cases, defence counsel has provided the court with a copy ofthe documents under seal, and the Crown with a

summary of their contents and the circumstances in which they were sent: R. v. T.A.,2020 ONSC 2613 at para. 11[T.A.];R. v. W.M., 2019 ONSC 6535 at paras. 11-13 [. In other cases, defence counsel has, as in the presentcase, provided copies of the documents to both the court and the Crown: R v. Navia, 2020 ABPC 20.

In at least one case, defencecounsel did not provide the documents to either the court or the Crown, but instead provided a description of the documents: R. v.McKnight, 2019 ABQB 755. 18 As noted, the general consensus in the decided cases is that the court should, where the document is available for review,consider its content in deciding whether it contains personal information in respect to which the complainant has a reasonableexpectation of privacy.

There is, however, a divergence in the case law as to the proper analytical framework for assessingwhether there is a reasonable expectation of privacy. 19 I will address this divergence and set out my view as to the applicable analytical framework before turning to the application of theframework to the text messages in issue before me.

Divergence in the case law 20 Defence counsel relies on the decision of Davies J. of the Ontario Superior Court of Justice in the case of W.M. , whichraised the issue of whether Facebook messages exchanged between the complainant and the accused were records for thepurposes of s. 278.1 of the Code. At para. 41, Davies J. listed four factors that she considered most relevant to the assessment of thecomplainant's reasonable expectation of privacy: (

a) The content of the messages; (

b) The manner in which the messages were sent and who has control over them; (

c) The nature of the relationship between the accused and the complainant; and (

d) The policy implications of finding the complainant does have a reasonable expectation of privacy. 21 In regard to the nature of the relationship between the accused and the complainant, Davies J. found that regardless of how therelationship is characterized at the time the messages are sent, it is important to consider that at the time of the application, the

complainant and accused are in an adversarial relationship. Viewed in that context, the complainant does not have a reasonable expectation that the accused will keep private electronic communications that advance his defence, as long as the communication does not involve sexual activity that engages s. 276: W.M . at para. 50 . 22 The "policy implications" identified in W.M . are twofold. First, Davies J. reasoned that if the complainant has a reasonable expectation of privacy in the Facebook messages, it would follow that the accused also has a reasonable expectation of privacy in the communications.

If that is so, then police would have to obtain a warrant before taking possession of electronic communications that a complainant exchanges with the accused.

This would, in the view of Davies J., be impractical and unworkable, which is a consequence that should influence the court's view of whether the complainant in fact has a reasonable expectation of privacy. 23 The second policy implication identified in W.M . is that interpreting the definition of "record" in s. 278.1 of the Code in an expansive manner to include any private communication between an accused and complainant may violate an accused's s. 7 rights.

This is because the result would be to limit the ability of an accused to cross-examine a complainant on a prior inconsistent statement, which is one of the most important means of testing their credibility and reliability. This potential Charter implication, in the view of Davies J., supports a narrower

interpretation of the phrase "reasonable expectation of privacy" in this context. 24 The framework of analysis articulated in W.M . has been applied in other decisions of the Ontario Superior Court of Justice: see for example R. v. X.C., 2020 ONSC 410 at para. 56 ; R. v. White, 2020 ONSC 1808 at paras. 12 and 18 . 25 The analysis in W.M . has not, however, been uniformly followed, even in Ontario.

In T.A. , Gomery J. declined to adopt the conclusions in W.M . that policy implications and the adversarial nature of the relationship between the accused and the complainant should be considered in assessing whether complainant had a reasonable expectation of privacy over the records: T.A . at paras. 23-35 . 26 I am in substantial agreement with Gomery J.'s reasons in T.A. for declining to adopt the analysis in W.M . as it relates to the factors of the adversarial relationship between the complainant and the accused and the policy implications. 27 In relation to the adversarial relationship between the complainant and accused, Gomery J. reasoned that a focus on the adversarial nature of the relationship would tend to undermine the very purpose of s. 278.1 of the Code, which is to protect a complainant's privacy rights in documents in the possession of an accused within the specific context of a criminal prosecution.

There is, as Gomery J. notes, a circularity in the argument that the adversarial relationship between the complainant and the accused should limit the complainant's reasonable expectation of privacy when it is the existence of the adversarial relationship that is the very premise of the analysis to be undertaken under the new provisions: T.A. at para. 28 .

Further, an overriding emphasis on the fair trial rights of an accused in the determination of whether the complainant has a reasonable expectation of privacy pre-determines the outcome of a balancing that is intended to occur later in the process, at the hearing into admissibility under s. 278.94 of the Code.

The factors that the court must consider on the admissibility hearing include the right of the accused to make full answer and defence and the potential prejudice to the complainant's personal dignity and right of privacy: s. 278.92(3). 28 In relationship to the "policy implications" identified in W.M. , Gomery J. notes that that structure of the new provisions requires the court to consider specific policy implications of permitting the accused to use the complainant's private records once they are determined to be "records".

I agree with Gomery J. that conducting a policy analysis at an earlier stage — that is, in considering whether the documents are "records" at all — tends to undermine the statutory scheme: T.A. at paras. 33-35 . 29 This concern is most apparent in relation to the policy implication identified in W.M . that including private communications between the complainant and accused within the definition of a "record" will infringe an accused's s. 7 rights. This assumes that the records the accused seeks to adduce in evidence will assist their defence. 30 In my view, the

interpretation of the phrase "reasonable expectation of privacy" under s. 278.1 of the Code cannot turn on an assessment of the relevance of the specific documents the accused seeks to tender in any particular case, or their importance to the accused's case. While the assessment of whether the complainant has a reasonable expectation of privacy may be contextual and fact specific, the statutory language must have a consistent meaning.

The concern expressed in W.M . is that the Facebook messages in issue may well be inconsistent with the testimony of the complainant at trial, yet the accused would not be permitted to cross-examine the complainant without disclosing the statements to the complainant in advance: W.M . at para. 54 . However, electronic messages between a complainant and accused will not always carry that sort of import for the accused's defence.

Electronic communication between a complainant and an accused may contain highly personal and private information that the complainant intended to keep private, and which is only marginally relevant to an issue at trial. The intent of the new provisions is to protect the complainant's privacy rights to the extent possible in such circumstances, without impairing the accused's right to make full answer and defence.

The structure of the new provisions suggest that Parliament intended that balancing to occur at the hearing into admissibility, not at the threshold stage of deciding whether the complainant has a reasonable expectation of privacy in the records. 31 It is true that a finding that an electronic communication between the complainant and the accused is a "record" means that a complainant will, in advance of cross-examination, have notice of the particulars of evidence that may be highly relevant to the accused's defence.

The potential infringement of such a process on an accused's fair trial rights is a ground upon which more than one trial court in Canada has concluded that the provisions governing the use of records in the possession of an accused are unconstitutional, in whole or part: see J.J . at para. 57. These issues will soon be addressed by the Supreme Court of Canada. However, in my view such constitutional concerns, in the absence of a direct challenge to the legislation, cannot justify adopting an

interpretation of s. 278.1 of the Code that fails to give full effect to the apparent Parliamentary intent. 32 I have taken time to express my respectful disagreement with some aspects of the analysis in W.M . because the accused placed such heavy emphasis on the analytical framework proposed in that case. Defence counsel urges me to adopt the four factors cited in W.M. , including policy implications, in determining whether the complainant has a reasonable expectation of privacy in the text messages he wishes to put in evidence.

For the reasons stated, I do not believe that either policy implications or the adversarial relationship between the complainant and the accused at trial justify a narrow

interpretation of the language in s. 278.1 of the Code. 33 Furthermore, and in any event, counsel did not cite any decision from this Court in which the framework in W.M . has been

adopted. Instead, both parties referred me to the decision of MacNaughton J. in R. v. R.M.R., 2019 BCSC 1093, which alsoconsidered the admissibility of electronic messages from the complainant that were in the possession of the accused. MacNaughton J.does not suggest that policy implications or the adversarial relationship between the complainant and accused should be factored into theanalysis of whether the complainant had a reasonable expectation of privacy in the text messages.

Rather, her analysis focusses on thenature and content of the messages and whether they were sent in circumstances that indicate the complainant did not intend them to beshared with others. MacNaughton J. held as follows: 38 In this case, I find that D.H. has a reasonable expectation of privacy with respect to the text messaging records between herself andR.M.R. They contain personal information in the form of communications between her and R.M.R. over a period of time. The messagesinclude the parties' thoughts, feelings, details of their daily activities, preferences, friendships, and social interactions.

Thesecommunications were sent between the two of them and were not intended to be shared with the public. ... 34 This analysis is consistent with the general approach the Supreme Court of Canada has adopted in analyzing informationalprivacy rights in the context of s. 8 of the Charter. While I appreciate that the s. 8 jurisprudence evolved in a different context, it isappropriate to draw on that jurisprudence in assessing whether there is a reasonable expectation of privacy for the purpose of s. 278.1 ofthe Code: Quesnelle at para. 27, and R. v. Mills, (SCC), [1999] 3 S.C.R. 668 at para. 99 [Mills].

Supreme Court of Canada jurisprudence on informational privacy 35 The jurisprudence establishes that expectations of privacy must be assessed in light of the "totality of thecircumstances": Quesnelle at para. 27. The concept of privacy encompasses informational privacy interests; that is, the right ofindividuals to determine for themselves when, how and to what extent information about them is communicated to others.

Such privacyconcerns 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": Mills at para.

Section 8 of the Charter protects a "biographicalcore" of personal information, including information that tends to reveal "intimate details of the lifestyle and personal choices ofthe individual: Mills at para. 81, citing R. v. Plant, (SCC), [1993] 3 S.C.R. 281 at 293.

When a court is consideringwhether there is a reasonable expectation of privacy in information, the nature and quality of the information at issue are relevant: R. v.Jarvis, 2019 SCC 10 at para. 66. 36 There is no question that individuals may have a reasonable expectation of privacy over the electronic messages they send,for example by text message. People may be inclined to discuss personal matters in electronic conversations because they assumethem to be private: R. v. Marakah, 2017 SCC 59 at para. 34.

Whether a reasonable expectation of privacy in such a conversationis present in any particular case must be assessed on the facts by the trial judge: Marakah at para. 5.

Summary on approach to defining "record" under s. 278.1 37 In

summary, I conclude that my assessment of whether the complainant has a reasonable expectation of privacy over thetext messages in issue in this case should be guided by the following principles:

a) Electronic communications from a complainant that are in the possession of an accused may fall within the definition of a"record" under s. 278.1 if the communications contain personal information for which there is a reasonable expectation ofprivacy.

b) The fact that the communications may contain personal information about a complainant does not, on its own, bring thecommunications within the definition of a record in s. 278.1. It must be personal information for which there is a reasonableexpectation of privacy. Further, the expectation of privacy must be objectively reasonable.

c) Whether there is a reasonable expectation of privacy is to be assessed on the basis of the totality of the circumstances. Thenature and quality of the information contained in text message are relevant. In other words, text messages are not a category ofrecords in relation to which a reasonable expectation of privacy invariably arises.

d) A complainant's privacy concerns will be at their strongest where the text messages disclose intimate details about thecomplainant's lifestyle and personal choices, including the plaintiff's personal characteristics and private interactions. Thequestion to be addressed is whether the information contained in the records is of a type that the complainant would havereasonably expected would remain private.

e) The other factors to be considered as part of the relevant totality of circumstances include the nature of the relationshipbetween the complainant and the recipient, the circumstances in which the messages were created, and nature of the mediumthrough which they were sent — for example, a private text message v. the posting of a communication to a publicly accessibleplatform. 38 For the reasons I have already stated, I do not include the policy implications identified in W.M. or the adversarial nature of therelationship between the complainant and the accused at the time of trial as factors to be considered in determining whether the textmessages fall within the scope of s. 278.1 of the Code. [My bolding added] [49] By any reasonable measure, all the communications between LY and TFO constitute a “record”.

Similarly, all communicationsbetween LY using the communications conduit of the private Facebook group constitute a “record”. [50] LY and TFO are both complainants in separate sexual assault prosecutions against NK. [51] I do not have information regarding the date of any offence or offences, the location where they are alleged to have happened,or the nature of the alleged offences in relation to TFO.

[ 52 ] LY and TFO were intermittent acquaintances before October 18, 2019. The text messages between them date from December 2019 through to and including July 17, 2021.

The text messages allow me to infer that the offences alleged by TFO against NK occurred between 2017 and 2019. [ 53 ] Therefore, I infer that when LY and TFO were text messaging each other throughout December 2019 and July 17, 2021, they were both potential complainants in relation to sexual assault allegations against NK. [ 54 ] This is significant because the primary bond between the two, evident from their text messages, is that they both consider themselves victims of sexual assault and other non-criminal mistreatment, at the hands of NK.

Their communications, specifically the text messages, were therefore of a very personal and sensitive nature. [ 55 ] I am satisfied that these text messages include personal information for which there was a reasonable expectation of privacy.

Beyond that, I accept that they both have a substantial reasonable expectation of privacy in their shared communications, which are fairly characterized as analogous to “core biographical information”. [ 56 ] To the extent that LY’s communications involved a private Facebook group for survivors of abuse, admittance to which requires permission by a specific host administrator, they are a “record” and there is clearly a reasonable expectation of privacy in those communications, which again are fairly characterized as analogous to “core biographical information”. [22] [ 57 ] Thus, all the proffered text messages are in the nature of a “record” per s. 278.1 CC . [ 58 ] There was no substantial dispute that this was the case – however the court as a matter of law must itself be satisfied of such. [ 59 ] Consequently, counsel focused their arguments on the two major criteria (s. 278.7(1) CC ): “likely relevance” to an issue at trial or to the competence of a witness to testify”; and whether “its production is necessary in the interest of justice”. [ 60 ] The position of NK regarding the sought records was set out in greater detail in his written and oral argument.

In

summary, his argument is as follows:

i) there is sufficient evidence to justify the conclusion that LY and TFO both have ample reasons to wish to prejudice NK’s personal interests, and they are both complainants against him in ongoing sexual assault prosecutions. Therefore, NK should be entitled to fully defend himself by exposing any inadvertent and inadvertent collusion between LY and TFO as against him.

To that end, he is seeking access to the records to gain evidence that could (“a reasonable possibility” that it would) ground an argument of such collusion; and otherwise argues that access to the records could negatively impact on the credibility of LY; and that evidence of both of these are expected to be borne out on an examination of their communications before and after LY made her complaint to the police on March 4, 2020; ii) references by LY to the incident are particularly important to NK’s ability to make full answer and defence. [ 61 ] Let me then turn to the categories of the text messages. [23] [ 62 ] Insofar as the dates of messages between LY and TFO are concerned, NK’s arguments implicitly suggest those occurring before the March 4 and March 20, 2020, statements to police by LY would generally be more probative of collusion/motive to fabricate or exaggerate, although communications thereafter could also be relevant.

Overall, I have examined all the communications with the same level of scrutiny regardless of the date of communication. 1-Those involving third parties and their personal circumstances, which are only mentioned incidentally in some communications by TFO and LY [ 63 ] I am satisfied that these are a “record”- they are primarily about the personal circumstances of LY and TFO. [ 64 ] I am satisfied, though sceptically, that some of these could be seen to be “likely relevant to an issue at trial”. [ 65 ] However, the relevance of these and their importance to NK’s full answer and defence (the added value thereof) are vastly overshadowed by considerations regarding: the expected modest probative value of that record; the significant reasonable expectation of privacy with respect to the record; the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; society’s interest in encouraging the reporting of sexual offences and in encouraging the obtaining of treatment by complainants of sexual offences. [24] [ 66 ] While I am mindful that I could redact such communications to protect third parties and LY/TFO, or there may be other conditions I could impose pursuant to s. 278.7

(3) CC , it is nevertheless not necessary in the interests of justice that they be produced to NK. 2-“Commiseration conversations” - which involved sharing the history of their lives and each of their general history/experiences with NK, including their past and present feelings toward NK [ 67 ] I am satisfied that these are a “record”; and some are “likely relevant to an issue at trial”. [ 68 ] Whether seen as an argument that they are relevant to LY’s credibility or there may be a motive to fabricate or exaggerate ( R v Ignacio , 2021 ONCA 69 - leave to appeal denied [2021] SCCA No. 127; R v AR , 2022 ONCA 33 , at para. 7 ; and R v Cupid , 2021 ABCA 386 , per Pentelechuk , JA in Chambers at para. 13), or that there may be advertent collusion or inadvertent collusion/tainting of a

complainant-witness’s memory by another witness to the material circumstances ( R v CG , 2021 ONCA 809 ), NK’s request for production thereof intrudes very heavily on the substantial privacy interests of both TFO and LY, while the added value of this intrusion is not significant given that there are existing adequate avenues for NK to explore these concerns at trial.

For example, NK could not be surprised at trial, that both complainants are upset with him. [ 69 ] Even considering the ameliorative effect of making redactions or conditions on the release thereof, I conclude it is not necessary in the interests of justice, that they be produced to NK. 3-Communications involving incidental references to their own indirect present knowledge/belief of NK’s intimate relationships with other women, including their past and present feelings toward NK [ 70 ] These communications are a “record”– some of them could be seen as “likely relevant to an issue at trial”. [ 71 ] At most, such conversations may cause LY to believe that what NK did to her was not an isolated incident, which same belief likely arises from her hearing about TFO’s experiences with NK. [ 72 ] NK’s counsel will be aware that LY and TFO may bear some hostility towards NK because of how they each believe he treated them.

LY’s police statement confirms that she feared he would be intimate with her and the

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