R. v. Fardy, 2022 NSSC 224

SUPREME COURT OF Nova Scotia Citation: R. v. Fardy , 2022 NSSC 224 Date: 20220805 Docket: CRK- 507778 Registry: Halifax Between: Her Majesty the Queen v. Jakob M. Fardy DECISION ON s. 278 APPLICATION Restriction on Publication: By court order made under subsection 486.4 of the Criminal Code , information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner. Judge: The Honourable Justice Joshua Arnold Heard: July 11, 2022, in Halifax, Nova Scotia Counsel: Robert Kennedy, for the Provincial Crown Zeb Brown, for Jakob Fardy 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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.

Overview [ 1 ] Jakob Fardy is charged with eight counts of sexual assault in relation to five separate complainants. The complainants were all adults at the time of the alleged crimes. By way of Crown disclosure, 6,012 electronic messages, which were mainly communications between the complainants before, during and after they each made their police complaints, were provided to the defence. [ 2 ] Mr. Fardy wants to rely on these messages at trial. The Crown consents to their use.

Nonetheless, as gatekeeper, I must consider the criteria set out in s. 278.92 and provide written reasons. [ 3 ] These are my written reasons. The Hearing and Agreement [ 4 ] A proper written application was filed by Mr. Fardy, in accordance with s. 278.93. The hearing had been delayed while awaiting the decision of R. v J.J. , 2022 SCC 28 , which was released on June 30, 2022.

As a result, the court scheduled a Stage One hearing for July 11, 2022. [ 5 ] On July 11, 2022, the day on which Stage One of the s. 278.92 application was to take place, the Crown filed a letter (and related appendices) with the Court, providing the following outline of the agreement the parties had reached regarding the application: Stage One of the

Section 278.92 application was scheduled to happen today. This application related to texts and chats in the possession of the accused which involved the five complainants. During the last few weeks, the Crown has discussed this matter with the complainants. I have confirmed with each of them that they are each waiving their right to participate in any potential Stage Two application and they further take no issue with the admissibility of the specific communications Defence seeks to use at trial. They have declined independent legal advice. The Crown also acknowledges that these communications are admissible pursuant to the test set out in

Section 278.92 and in R v JJ, 2022 SCC 28 . For greater clarity, the following communications will not be used at trial by Defence: - 19 messages containing “personal information” (Appendix A) - 60 messages containing evidence of prior sexual history (Section 276) (Appendix B) - 2 additional messages containing evidence of prior sexual history (Section 276) (Appendix C) - The redacted portions of 2 messages containing evidence of prior sexual history (Section 276) (Appendix

D) I have reviewed the balance of the messages and agree that they do not meet the definition of “record” under

Section 278.1 or would otherwise meet the test under

Section 278.92, as they do not pertain to the complainants, contain “mundane information” ( JJ at para. 53) or are in relation to the actus reus of the offences. [ 6 ] The complainants provided all of the communications in question to the police and/or the Crown. The Crown provided all of these communications to the defence by way of disclosure. The defence brought a proper application for their use in accordance with the provisions of the Criminal Code . The complainants consent to Mr. Fardy using the communications at trial. The Crown consents to Mr.

Fardy using the communications at trial as detailed above. [ 7 ] I have considered all of the requirements for admissibility and requisite factors as set out in s. 278.92. I have considered the Supreme Court of Canada’s direction in J.J. I agree with the parties that Mr. Fardy can rely on the communications as detailed in counsel’s agreement referenced above. Conclusion [ 8 ] The following communications cannot be used or referenced at trial by Mr.

Fardy: - 19 messages containing “personal information” (Appendix A) - 60 messages containing evidence of prior sexual history (Section 276) (Appendix B) - 2 additional messages containing evidence of prior sexual history (Section 276) (Appendix C) - The redacted portions of 2 messages containing evidence of prior sexual history (Section 276) (Appendix D) [ 9 ] The balance of the communications do not meet the definition of “record” under

Section 278.1 as they either do not pertain to the complainants, they contain “mundane information” or they relate to the actus reus of the alleged offences. These remaining messages can be relied on by Mr. Fardy at trial. Arnold, J.