R.R. Applicant And: HER MAJESTY THE QUEEN IN RIGHT OF NEWFOUNDLAND v. LABRADOR, 2022 NLSC 44

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R.R. v. Newfoundland and Labrador , 2022 NLSC 44 Date : March 22, 2022 Docket : 202101G4059 IN THE MATTER OF an application by R.R. for an order banning the publication of his name Between: R.R.

Applicant And: HER MAJESTY THE QUEEN IN RIGHT OF NEWFOUNDLAND and LABRADOR RESPONDENT AND: THE CANADIAN BROADCASTING CORPORATION AND CTV NEWS, A DIVISION of BELL MEDIA INTERVENERS/ RESPONDENTS Restriction on Publication: By court orders dated 7 July 2021, 1 November 2021 and 19 November 2021, information that may identify the person described in this judgment as the Applicant or the Accused shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice James P. Adams Place of Hearing: St. John’s, Newfoundland and Labrador

Date of Hearing: January 11, 2022

Summary: The Applicant was charged with several counts of sexual assault. He applied for a publication ban on his name or any information which could disclose his identity. He filed three affidavits in support of his application. The Interveners applied to strike the affidavits. Held : The Application to strike is allowed in part. Appearances: Jerome P. Kennedy, Q.C. Appearing on behalf of the Applicant Scott Hutchison Rosellen Sullivan Brandon Chung Deidre D. Badcock Appearing on behalf of the Respondent Lloyd M.

Strickland Christine Lonsdale Appearing on behalf of the Interveners Pippa Leslie William Main Authorities Cited: CASES CONSIDERED: Sherman Estate v. Donovan , 2021 SCC 25 ; R. v. J. (J.) , 2000 SCC 51 ; Long Harbour Employers Assn. Inc. v. Resource Development Trades Council of Newfoundland and Labrador , 2013 NLTD(G) 3; R. v. Starr , 2000 SCC 40 ; R. v. Le , 2019 SCC 34 ; R. v. Spence , 2005 SCC 71 ; R. v. Hart , 2012 NLCA 61 ; R. v. Hart , 2014 SCC 52 ; A.B. (Litigation Guardian of) v. Bragg Communications Inc. , 2012 SCC 46 ; White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23 ; Compton v.

Toyota Canada Inc. , 2019 NLCA 79 STATUES CONSIDERED: Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR DECISION ON APPLICATION TO STRIKE AFFIDAVITS Adams, J. : INTRODUCTION [ 1 ] This is an interim application by the Interveners to strike the affidavits filed by the Applicant in this matter.

BACKGROUND [ 2 ] R.R. has been charged with several counts of sexual assault, one involving a minor. He applied for a publication ban on his name or anything which could lead to the disclosure of his identity. He was granted an interim publication ban.

R.R. filed three affidavits in support of his application: one from himself, one from Rachelle Bennett containing a number of academic articles and social science reports, and one from Matthew Earle, the President of Reputation.ca explaining the functioning and management of internet searches and the ability to manage them in an attempt to rehabilitate the reputation of a person which has been damaged by negative stories about them on the internet. [ 3 ] At the interim hearing, the Crown was ordered to be named as the Respondent in the Originating Application commencing this matter.

The Canadian Broadcasting Corporation and CTV News, a division of Bell Media (hereinafter CBC and CTV and sometimes referred to as “the media”) were granted standing as Interveners interested in the outcome of the application. The other parties did not object. [ 4 ] At the commencement of the hearing in this matter CBC and CTV filed an interlocutory application to strike all three of the affidavits filed by the Applicant in support of his application for a publication ban. The interlocutory application was heard on 11 January 2022.

The Affidavits [ 5 ] The Applicant filed his own affidavit with his Originating Application. In it he set out his personal circumstances.

He described the process followed when he was contacted by the Royal Canadian Mounted Police (“RCMP”) to advise him that he was likely to be charged with the offences with which he was ultimately charged. [ 6 ] The Applicant set out his assertion of innocence, his professional background, the effect of the publication of his identity on the livelihood of other lawyers and support staff employed by him, the impact on his professional career, the negative emotional and psychological impact on his wife and children and the social, psychological, emotional and reputational impacts on him. [ 7 ] The Applicant also described in paragraphs 13 and 14 of his affidavit an investigation of the charges against him by a private investigator retained by him.

This included the investigator’s findings following interviews by him of some members of the complainant’s family. [ 8 ] The Applicant also filed an affidavit of Rachelle Bennett, a legal assistant in the office of Henein Hutchison, counsel for the Applicant. Ms. Bennett’s affidavit included, without comment by her, various academic articles and professional survey data.

These included as described in paragraph 66 of the Applicant’s Brief: • Academic articles regarding the stigma and negative consequences associated with allegations of sexual assault (paragraph 2-4); • Parliamentary documents and publications from the Office of the Privacy Commissioner of Canada regarding privacy and online reputation (paragraphs 5, 6 and 13); • Academic publications on the law of defamation and the way it has changed in the modern context of the Internet and social media paragraphs 7-12); • Survey data from Statistics Canada and the Angus Reid Institute regarding how Canadians now use the Internet and social media and how they view allegations of sexual assault (paragraphs 14-17). [ 9 ] Additionally, the Applicant filed an affidavit from Matthew Earle, President of Reputation.ca, a company whose role is to rehabilitate the reputation of a person who has been the subject of negative public commentary on the internet, through “online reputation management” and “search engine optimization.” As explained in his affidavit, “online reputation management generally refers to the process of managing the information available on the internet about a particular person or business” (paragraph 5) and “search engine optimization is the process of influencing the results in a particular search engine (for example, Google) search.” (paragraph 6) issue Should the Affidavits filed by the Applicant be struck?

Positions of the Parties CBC and CTV [ 10 ] The media objected to the admissibility of the affidavits essentially on the basis that they were irrelevant to the test for a publication ban set out in Sherman Estate v. Donovan , 2021 SCC 25 (“ Sherman Estate ”).

They submitted that R.R.’s affidavit spoke only to his personal interests which do not rise to the level of an important public interest and was therefore not probative of any of the elements of the test for a publication ban. [ 11 ] In addition, they submitted that paragraphs 12 to 14 of R.R.’s affidavit should be struck on the additional grounds that they constitute double hearsay. These paragraphs describe an investigation undertaken at the request of the Applicant by a retired Royal

Newfoundland Constabulary Officer who interviewed the complainant’s mother and sister respecting the allegations made by the complainant. R.R. set out the alleged results of the investigation. [ 12 ] The media objected to the affidavit of Rachelle Bennett on the basis that it contained information which, in addition to being irrelevant, if admissible at all, constitutes expert evidence and ought to have been introduced through an expert witness which Ms. Bennett clearly is not.

They submitted that it constitutes hearsay evidence. [ 13 ] In respect of the affidavit of Matthew Earle, the media submitted that, quite apart from being irrelevant, his testimony constitutes expert evidence which can only be introduced through an expert witness properly qualified according to the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D (the “ Rules ”) in that regard. The Applicant [ 14 ] The Applicant submitted that the affidavit of R.R. is admissible. He says it is relevant to the issues before me and without it I would have to decide the matter in a vacuum.

R.R.’s affidavit sets out his background and the effect publication of his name in association with the charges would have on him, his family and his reputation.

He submitted that his affidavit speaks to the important public interests he has identified in his application. [ 15 ] The Applicant submitted that the affidavit of Rachelle Bennett is admissible as social context evidence in accordance with the Supreme Court of Canada jurisprudence in that regard and, as such, it need not be entered as expert evidence. [ 16 ] The Applicant submitted that the Matthew Earle affidavit is admissible as fact evidence since it is “limited to facts he observed in the course of his career.” (Applicant’s Factum, paragraph 48) In the alternative, he submitted that Mr.

Earle’s affidavit is admissible as expert evidence. [ 17 ] Following oral argument, I gave my decision with reasons to follow. I allowed CBC and CTV’s application in part by striking paragraphs 13 and 14 of R.R.’s affidavit and admitting the remainder. I found that the proposed evidence of Matthew Earle constituted expert evidence which was inadmissible. I granted leave to the Applicant to resubmit Mr. Earle’s affidavit as an expert affidavit subject to the Rules on admission of expert evidence. I admitted the affidavit of Rachelle Bennett as social context evidence. These are my reasons for that decision.

Analysis R.R.’s Affidavit [ 18 ] The media’s objection to the admissibility of R.R.’s affidavit on relevance is rejected. I find that with the exception of paragraphs 13 and 14 R.R.’s affidavit is relevant to the issues before me. To have allowed the media’s objection would have amounted to prejudging the merits of the main application for a publication ban. The court would have been left without a record and would have been forced to decide the main application in a vacuum. [ 19 ] As stated in R. v. J. (J.) , 2000 SCC 51 at paragraph 47 : 47.

Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence” (authorities omitted) [ 20 ] In Sherman Estate at paragraph 38 , the Supreme Court restated the test for a publication ban which constitutes a restriction on the open court principle: 38 The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessity and proportionality of the proposed order ( Sierra Club , at para. 53).

Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle.

In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and, (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments ( Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 , [2005] 2 S.C.R. 188 , at paras. 7 and 22 ).

[ 21 ] The question of whether the “personal interests” of the Applicant rise to the level of “an important public interest” as required in Sherman Estate is at the heart of the application for a publication ban. [ 22 ] In the first place, the Rules specifically allow that an application is to be heard on affidavit evidence, subject to an order of the court. Rules 29 and 48 set this out. In Long Harbour Employers Assn. Inc. v. Resource Development Trades Council of Newfoundland and Labrador , 2013 NLTD(G) 3 Burrage, J. stated at paragraphs 15 and 16: 15 The within matter proceeded as an application, the procedure for which is governed by Rule 29 . Rule 29.09(1)(

a) expressly provides that evidence on a hearing may be given by affidavit pursuant to Rule 48 . It reads: 29.09.

(1) Evidence on a hearing may be given (

a) by an affidavit or statutory declaration made pursuant to Rule 48 ; 16 Rule 48 , in turn, prescribes the form of an affidavit to be used in a proceeding. There is a general power of the Court to permit an affidavit to be used in evidence notwithstanding any irregularity in its form. … Also, there is the general power of the Court to strike matters from an affidavit that are scandalous, irrelevant or otherwise oppressive. … [ 23 ] Rule 48.02 states: 48.02.

(1) An affidavit used on an application may contain statements as to the belief of the deponent with the sources and grounds thereof.

(2) Unless the Court otherwise orders, an affidavit used on a trial shall contain only such facts as the deponent is able of his or her own knowledge to prove. [ 24 ] Therefore, since this matter comes before the court by way of Originating Application, Rule 29 allows for the matter to proceed by way of affidavit evidence. Rule 48 allows for the use of hearsay evidence provided the sources are disclosed. Parties may apply for leave to cross-examine affiants. [ 25 ] But the use of hearsay evidence is not limitless.

There are specific Rules governing its use particularly where the party is relying on the hearsay statements for their truth. In the case of paragraphs 13 and 14 of R.R.’s affidavit, he describes interviews of third parties undertaken by a private investigator hired by him. It is suggested that these statements exonerate him. [ 26 ] These statements amount to double hearsay which is particularly dangerous as neither the complainant, the investigator, nor the third parties provided personal affidavits nor were they presented for cross-examination. The Supreme Court of Canada has cautioned in R. v.

Starr , 2000 SCC 40 at paragraph 172 that double hearsay should be approached with particular concern: 172 Second, there are very good reasons behind the rule against allowing statements of present intention to be used to prove the state of mind of someone other than the declarant. As noted above, the central concern with hearsay is the inability of the trier of fact to test the reliability of the declarant's assertion. When the statement is tendered to prove the intentions of a third party, this danger is multiplied.

If a declarant makes a statement about the intentions of a third party, there are three possible bases for this statement: first, it could be based on a prior conversation with the accused; second, it could be based on a prior conversation with a fourth party, who indicated the third party's intentions to the declarant; or third, it could be based on pure speculation on the part of the declarant. Under the first scenario, the statement is double hearsay.

Since each level of double hearsay must fall within an exception, or be admissible under the principled approach, the mere fact that the declarant is making a statement of present intention is insufficient to render it admissible. The second level of hearsay must also be admissible. [ 27 ] As well, to the extent that the contents of paragraphs 13 and 14 of the Applicant’s affidavit speak to the merits of the allegations against him, they would have the tendency to lead the court to a possible prejudgment of the charges.

This would be completely improper as this must be left to the trier of fact after all the evidence has been adduced at trial. [ 28 ] For these reasons, I struck paragraphs 13 and 14 of R.R.’s affidavit but allowed the remainder of it to be admitted. I find, contrary to the assertion by CBC and CTV, that R.R.’s affidavit is relevant to give background information to his life and business interests which he claims would be adversely affected in the absence of a publication ban.

This information, while personal in nature, is the very substance of the Applicant’s argument that I should find that the effects of the disclosure of his identity on his privacy and dignity rise to the level of a serious public interest as required in the first branch of the Sherman Estate test which would be put at serious risk in the absence of a publication ban.

Without this evidence I would be left to decide the matter on a theoretical level only which is contrary to Sherman Estate : 42 While there is no closed list of important public interests for the purposes of this test, I share Iacobucci J.'s sense, explained in Sierra Club , that courts must be "cautious" and "alive to the fundamental importance of the open court rule" even at the earliest stage when they are identifying important public interests (para. 56).

Determining what is an important public interest can be done in the abstract at the level of general principles that extend beyond the parties to the particular dispute (para. 55). By contrast, whether that interest is at "serious risk" is a fact-based finding that, for the judge considering the appropriateness of an order, is necessarily made in context . In this sense, the identification of, on the one hand, an important interest and, on the other, the seriousness of the risk to that

interest are, theoretically at least, separate and qualitatively distinct operations. An order may therefore be refused simply because a valid important public interest is not at serious risk on the facts of a given case or, conversely, that the identified interests, regardless of whether they are at serious risk, do not have the requisite important public character as a matter of general principle. [emphasis added] Rachelle Bennett Affidavit [ 29 ] The media also submitted that the affidavit of Rachelle Bennett should be struck. I disagree.

In my view, Bennett’s affidavit is admissible as social context evidence. [ 30 ] The Bennett affidavit attached as exhibits a number of academic articles and social science research to show the effects of the internet on the dissemination of information and the effects that this can have on a person’s reputation. This is relevant to the Applicant’s submission that his reputation would be unduly tainted by the disclosure of his identity in association with the charges of sexual assault.

Reputation and personal dignity as an aspect of privacy may rise to the level of an important public interest in the right case: ( Sherman Estate , paragraph 48 ). [ 31 ] Social context evidence is admissible through a nuanced

interpretation of the doctrine of judicial notice and does not have to be entered through an expert. It can be useful in the determination of Charter [1] values such as those at issue in this case, notably sections 7 , 11(

d) and 2(b) . [ 32 ] In R. v. Le , 2019 SCC 34 , the court was faced with the challenge of considering the issue of race relations in policing and an allegation of racial profiling in the detention of a young black man. The court allowed into evidence and relied on a number of academic articles on these issues. In paragraph 83 of Le the court, citing R. v.

Spence , 2005 SCC 71 , stated: 83 Evidence about race relations that may inform whether there has been a detention under s. 9 , like all social context evidence, can be proved in legal proceedings by direct evidence, admissions, or by the taking of judicial notice. The realities of Charter litigation are that social context evidence is often of fundamental importance, but may be difficult to prove through testimony or exhibits.

To be sure, social context evidence is a type of "social fact" evidence, which has been defined as "social science research that is used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a particular case" ( R. v. Spence , 2005 SCC 71 , [2005] 3 S.C.R. 458 (S.C.C.), at para. 57 ). [ 33 ] Then at paragraphs 84 to 85, the court stated: 84 In most cases, the knowledge imputed to the reasonable person comes into evidence as a social fact of which the judge may take judicial notice. In R. v.

Find , 2001 SCC 32 , [2001] 1 S.C.R. 863 (S.C.C.), McLachlin C.J. held that a court may "take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy" (para. 48). These two criteria are often referred to as the Morgan criteria (see E.M. Morgan, "Judicial Notice" (1944), 57 Harv. L.

Rev. 269). 85 In Spence , however, Binnie J. clarified that the taking of judicial notice is more nuanced and depends on the role such facts will play in the disposition of a given case — the more they become dispositive of an issue in dispute, the more pressing it is to meet the two Morgan criteria (para. 63). In circumstances where social facts will merely paint the background to a specific issue, then courts will usually take judicial notice of them and the threshold is lower.

However, in cases that fall between these two ends of the spectrum, Binnie J. remarked: When asked to take judicial notice of matters falling between the high end already discussed where the Morgan criteria will be insisted upon, and the low end of background facts where the court will likely proceed (consciously or unconsciously) on the basis that the matter is beyond serious controversy, I believe a court ought to ask itself whether such "fact" would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute. ... [para. 65] [ 34 ] The court found that the social context evidence fell in the middle ground discussed by Binnie, J. in Spence .

It constituted reliable reports and studies explaining the context of race relations, including several articles from academic journals, reports of the Ontario Human Rights Commission and a report prepared by Justice Tulloch of the Ontario Court of Appeal. [ 35 ] As well, in R. v. Hart , 2012 NLCA 61 at paragraphs 146 and 157 to 164 , Green, C.J.N.L. for the unanimous court relied on academic reports respecting the reliability of the “Mr. Big” technique to obtain confessions from suspected criminals. These included studies regarding the psychological effects on persons subjected to the technique.

In upholding Green, C.J.N.L.’s reasoning, the Supreme Court of Canada in R. v. Hart , 2014 SCC 52 at paragraphs 57 to 59 referred to some of the same resources in addition to others. [ 36 ] In A.B. (Litigation Guardian of) v. Bragg Communications Inc. , 2012 SCC 46 , the court relied on several academic articles to conclude that absent a publication ban the applicant would suffer “objectively discernable harm” as a result of cyberbullying (Applicant’s Factum, paragraph 40).

The court was moved by the ability of harmful information to be quickly and widely disseminated on the internet. [ 37 ] The Applicant proposes to use the articles and studies referred to in the Bennett affidavit in this case in like manner. I find the information falls in “the middle ground” between being dispositive of the issue at hand and being mere background. It is useful in considering whether the interests advanced by the Applicant rise to the level of an important public interest in the Sherman Estate test. As stated by the Applicant in his brief at paragraph 45: 45.

As in Bragg , the evidence will be used to assess the extent of the risk to the public interest. In Bragg , the evidence was used to assess whether the anonymity order and publication ban sought would protect “an important legal interest,” namely, harm to the

applicant resulting from cyberbullying. In Sherman Estate , the Supreme Court of Canada later clarified that Bragg was also a case about harms to privacy and dignity. As explained in the Applicant’s Memorandum of Fact and Law, these are exactly the interests at stake in this case. The social context evidence here will be used to illustrate the unique stigma and harm associated with allegations of sexual misconduct, as well as the extent to which those harms are being exacerbated by the dissemination and permanent storage of those allegations through the Internet and social media.

In other words, as in Bragg , the social context evidence here provides a foundation for the assessment of the likely harms that the Applicant will suffer if a publication ban is not granted. [ 38 ] On this basis, I admitted the Bennett affidavit as evidence in this case. Matthew Earle Affidavit [ 39 ] The Applicant submitted that the Earle affidavit ought to be admitted as fact evidence. In my view, this position is untenable. Mr. Earle’s affidavit speaks in general terms of the effect the internet can have on a person’s reputation. It does not refer to any direct evidence relating to the Applicant.

It sets out Mr. Earle’s education and background and his expertise in online reputation management and search engine optimization. He refers to the algorithms used in various search engines such as Google and his knowledge of how they work, among other matters of specialized knowledge. [ 40 ] These matters are beyond the experience and knowledge of the court and relate to specialized information which should be put before the court as expert evidence. [ 41 ] The Supreme Court in White Burgess Langille Inman v.

Abbott and Haliburton Co. , 2015 SCC 23 (“ White Burgess ”) set out the proper two step approach to the admission of expert evidence at paragraphs 23 and 24: 23 At the first step, the proponent of the evidence must establish the threshold requirements of admissibility.

These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose: J. (J.-L.) , at paras. 33, 35-36 and 47 ; Trochym , at para. 27; Lederman, Bryant and Fuerst, at pp. 788-89 and 800-801. Relevance at this threshold stage refers to logical relevance: Abbey (ONCA), at para. 82; J. (J.-L. ) , at para. 47 . Evidence that does not meet these threshold requirements should be excluded.

Note that I would retain necessity as a threshold requirement: D. (D.) , at para. 57; see D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 209-10; R. v. Boswell , 2011 ONCA 283 , 85 C.R. (6th) 290 (Ont. C.A.), at para. 13 ; R. v. C. (M.) , 2014 ONCA 611 , 13 C.R. (7th) 396 (Ont. C.A.), at para. 72 . 24 At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways.

In Mohan , Sopinka J. spoke of the "reliability versus effect factor" (p. 21), while in J. (J.-L.) , Binnie J. spoke about "relevance, reliability and necessity" being "measured against the counterweights of consumption of time, prejudice and confusion": para 47.

Doherty J.A. summed it up well in Abbey , stating that the "trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence": para. 76. [ 42 ] In Compton v. Toyota Canada Inc. , 2019 NLCA 79 the Court of Appeal had the opportunity to comment upon and apply the test for admission of expert evidence in White Burgess .

The evidence must first pass the threshold requirements for admissibility: it must be relevant, necessary, not be subject to an exclusionary rule and be presented by a properly qualified expert: Compton v. Toyota at paragraph 21 . If these requirements are not met, the evidence is not admissible. [ 43 ] I find that the affidavit evidence of Matthew Earle fails the threshold test. It has not been presented through a properly qualified expert.

Once it has been presented in the appropriate manner, it will still be necessary to determine whether it passes the other three elements in the first step of the White Burgess analysis. Even if the Earle affidavit is resubmitted as expert evidence, it must also pass the second step of a risk/ benefits analysis, which “cannot be conducted in a vacuum” and which requires a determination of the nature and scope of the proposed expert evidence: Compton v.

Toyota at paragraph 30. [ 44 ] In the result, in respect of the affidavit of Matthew Earle, I found that it constituted expert evidence which must be admitted in the proper way. Since it was not properly admitted as an expert affidavit I found that it was inadmissible. I granted the Applicant leave to reintroduce Mr. Earle’s affidavit as expert evidence subject to the ordinary Rules on the admission of such evidence. If that is done then I will determine its admissibility according to the appropriate analysis. conclusion [ 45 ] The affidavit of R.R. is admissible subject to the striking of paragraphs 13 and 14.

The affidavit of Rachelle Bennett, with the exhibits attached, is admissible as social context evidence. The affidavit of Matthew Earle is inadmissible in its present form as it constitutes expert evidence which has not been properly proffered. Leave is granted to reintroduce the Earle affidavit as an expert affidavit subject to the rules on the admissibility of expert evidence. _____________________________ James P. Adams Justice