R. v. N.K., 2022 NSSC 81

SUPREME COURT OF Nova Scotia Citation: R. v. N.K. , 2022 NSSC 81 Date: 20220321 Docket: Halifax , No. 505484 Registry: Halifax Between: Her Majesty the Queen v. N.K. DEFENCE

SECTION 278.92 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486.4 of the Criminal Code , information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner.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: January 6, 2022, in Halifax, Nova Scotia Counsel: Sarah Kirby, for the Provincial Crown Ian Joyce and Thomas Morehouse, for N.K. 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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 ] N.K. is charged with multiple sexual assaults and assault by choking the complainant, T.O., in 2017 and 2018. They were in a relationship at the time. Mr. K. seeks a determination as to whether various electronic communications, including text messages, emails, Snapchat messages, Facebook Messenger messages, and voice mails between T.O. and himself, and between T.O. and his father, are “records” pursuant to s. 278.1 of the Criminal Code for the purpose of a production application. Mr. K. had also applied under the same

section to rely on T.O.’s May 9, 2019, police statement, in relation to non-sexual assaults, which was provided to him through Crown disclosure. [ 2 ] In accordance with the procedure created by s. 278.92, and the subsequent case law, Mr. K. provided all of the communications in question to the court for review. The Crown and the complainant did not receive them. Considering the imbalance between the resources and machinery of the state and the resources of the accused, fair trial rights guard against requiring defence disclosure in all but clearly proscribed circumstances.

There was no way to give transparent reasons for my decision without breaching the usual prohibition on defence disclosure in some fashion. I therefore gave the parties a bare bones bottom-line decision in relation to this matter on February 3, 2022, merely identifying via tab numbers the materials I determined to be records. [1] March 21, 2022, was the first day scheduled for the five-day trial. On that date the Crown called no evidence and the matter was dismissed for want of prosecution. In keeping with s. 278.95, I held a hearing on March 24, 2022, to determine whether this decision should be published. Ms.

Kirby for the Crown, Mr. Morehouse for N.K. and Ms. Kwan for T.O., all agreed that the decision should be published, but that the names of all of the parties must be anonymized in this specific case in order to protect the identity of the complainant. Considering the interests of justice in ensuring the public is aware of judicial decisions and to ensure judicial comity, I agree that the decision should be published, subject to anonymization of the parties in order to protect the privacy rights of the complainant. [2] This is my written decision. Facts [ 3 ] Mr.

K. and T.O. were in an on-again, off-again relationship between December 2017 and April 2019. On May 9, 2019, T.O. gave a written statement to the police alleging that Mr. K. physically assaulted her several times. There was no mention in that statement of any sexual component to the alleged assaults. About eight months later, on December 27, 2019, T.O. again contacted the police and told them that Mr. K. had sexually assaulted her twice during the same time-frame as the alleged physical assaults. [ 4 ] On January 9, 2020, T.O. gave a video-recorded police statement in which she alleged that Mr.

K. sexually assaulted her four times, and choked her, during the same time-frame as the previously reported physical assaults. According to the January statement, T.O. said she gave her original May 9 statement in the aftermath of some sort of mental health episode that occurred while she was in Greece on vacation and her medication

schedule was interrupted. She said: MS. O. : And I won’t accept that. But I was - - I was tired and I - - I was sad. So I said goodbye. I would then be going to Greece for days. Um, in Greece I got into hysterics. I have medication for borderline. Um, they need to be taken at a certain time, if they’re not it messes up my whole cycle. So while I was in Greece I feared he was seeing somebody else, and not in the fear of, he’s seeing somebody else but what about me, more so somebody’s in danger, and I can’t have it on my conscience if she’s dead. So this pushed me even further.

When I got back I was calling the cops. CST. ELSON : Okay. So you - - so you called the police to report the physical aspects but not the sexual assaults? MS. O. : At the time I think I, like, intended to report the sexual assaults as well. But then I was sitting there, um, with the officer and I was writing out the paper. There was already so much physical assault. CST. ELSON : Um-hmm. MS. O. : And I - - I was worse off then than I was now with it, in the - - my memory is very, very jumbled with it. Um, in the beginning it was especially with the physicals as well.

It is very hard to pinpoint when it happened exactly. And I don’t know why my memory is doing that. [ 5 ] In her December 2019 statement, T.O. stated that she was having trouble remembering some details of the alleged events. According to the General Occurrence Hardcopy authored by the officer who took the statement: O. told me she was having some trouble remembering the details of what had occurred and had considered reporting these when she made earlier reports about different matters with K. however she was not comfortable at the time.

She told me that there were more than these two incidents, but could not remember all the details of them. [ 6 ] During her video-recorded statement of January 9, T.O. said her memory was mixed up: CST. ELSON : Yeah, take a breath. Um, if you need water or anything, let me know. Um, so just tell me, um, everything that happened. MS. O. : Okay. Um, I - - I’m trying to, like - - my memory is very, like, mixed up around it. CST. ELSON : Um – hmm. MS. O. : And I know that’s really bad going in, um, because it needs to be very organized and concise, which of course makes sense.

Um, so it’s not going to be that. [ 7 ] During that same January 9 statement, T.O. reiterated that her memory was very jumbled regarding the events alleged. She

said: MS. O. : At the time I think I, like, intended to report the sexual assaults as well. But then I was sitting there, um, with the officer and I was writing out the paper. There was already so much physical assault. CST. ELSON : Um-hmm. MS. O. : And I - - I was worse off then than I was now with it, in the - - my memory is very, very jumbled with it. Um, in the beginning it was especially with the physicals as well. It is very hard to pinpoint when it happened exactly. And I don’t know why my memory is doing that. [ 8 ] In describing one of the alleged sexual assaults, T.O. also told the police: MS.

O. : Before and after is - - is really foggy. [ 9 ] As noted earlier, Mr. K. is in possession of a range of electronic communications, including text messages, emails, Snapchat messages, Facebook Messenger messages, and voice mails between T.O. and himself, as well as between T.O. and his father, M.H. He has possession of her May police statement by way of Crown disclosure. He proposes to rely on all the communications in his possession. According to the affidavit of Katie Joyce, an associate lawyer working with Mr.

K.’s counsel, none of the communications in question reference sexual activity. [ 10 ] At the conclusion of the hearing on January 6, 2022, the Crown agreed that any electronic communications sent after May 9, 2019 (the date of T.O.’s first police statement) were admissible without the need for a s. 278.92 application because T.O. had made her initial complaint to the police on that day.

I agree that any communications after that date are not “records”, in that they could not contain personal information for which T.O. would have a reasonable expectation of privacy, and are therefore admissible without the need for a s. 278.92 application. [ 11 ] The Crown also agrees that in the unusual circumstances of this case, since the Crown itself is going to elicit evidence from T.O. on direct examination regarding the non-sexual assault charges, disclosure material in the accused’s possession relating to those charges, including T.O.’s May police statement, is admissible without a s. 278.92 application.

Issues [ 12 ] The sole issue is whether the electronic communications made prior to May 9, 2019, between T.O. and Mr. K., and T.O. and Mr. H., are records as defined by s. 278.1 of the Criminal Code , and are therefore subject to a s. 278.92 application to determine their admissibility. The Legislation [ 13 ]

Section s. 278.1 of the Criminal Code states: 278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable 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 or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence. [Emphasis in original] [ 14 ] Sections 278.92-278.95 describe the procedure and relevant considerations for deciding on the admissibility of records in possession of the accused that relate to the complainant: 278.92

(1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: (

a) an offence under

section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or (

b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (

a) if it occurred on or after that day. Requirements for admissibility

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, (

a) if the admissibility of the evidence is subject to

section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or (

b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Factors that judge shall consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (

a) the interests of justice, including the right of the accused to make a full answer and defence; (

b) society’s interest in encouraging the reporting of sexual assault offences; (

c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; (

d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (

e) the need to remove from the fact-finding process any discriminatory belief or bias; (

f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (

g) the potential prejudice to the complainant’s personal dignity and right of privacy; (

h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (

i) any other factor that the judge, provincial court judge or justice considers relevant. [ 15 ] The

section goes on to authorize on application by the accused for a hearing under

section 278.94 to determine admissibility under sections 276(2) or 278.92(2) (s. 278.93). If the judge is satisfied that the relevant prerequisites are met and that the evidence is capable of being admissible under s. 276(2), the judge may hold a hearing to determine whether the evidence is admissible under ss. 276(2) or 278.92(2) (s. 278.93(4)).

The complainant is entitled to make submissions on the application (s. 278.94(2)) and the judge must give reasons for their decision (s. 278.9(4)). [ 16 ] The application is subject to a publication ban as detailed in s. 278.95. [ 17 ] These provisions were originally enacted pursuant to S.C. 2018, c. 29, coming into force on December 13, 2018. There has been litigation across Canada related to their constitutionality, as well as what constitutes a “record” as defined by s. 278.1 . The constitutional issue was heard and reserved by the Supreme Court of Canada in October 2021: R. v. A.S., [2021] S.C.C.A.

No. 5; R. v. J.J. , [2020] S.C.C.A. No. 111. [ 18 ] Mr. K. has not challenged the constitutionality of s. 278.92 or the related provisions. Nonetheless, any decision must be made through the lens of constitutional standards, including the presumption of innocence, the right to silence, and the right to make full answer and defence. [ 19 ] The parties have agreed that I should follow the procedure for this application as set out by Lynch J. in R. v. Whitehouse , 2020 NSSC 87 , and in R. v.

A.M., 2020 ONSC 1846 , where Christie J. stated: [70] This court suggests the following procedure be followed where the defence has material in its possession or control relating to a complainant, which it intends to adduce, and for which it is not clear whether it would amount to a “record” as defined in s. 278.1: 1. The accused must bring an application seeking a ruling from the court as to whether or not the material is a “record” as defined by s. 278.1 of the Criminal Code ; 2.

In the application, the accused must summarize the content of the material in order to provide the Crown with sufficient knowledge upon which to make the argument. Some suggested information that will likely be necessary, may include, but is not limited to the following: a. The nature and type of material – i.e.: text message, email, photograph, social media post; b. Identify all parties privy to the material or expected to be privy to the material, i.e. parties to the communication in text messages; c.

The nature of the relationship between the parties at the time of the communication and at the time of the application; d. Identify how and when the material came into the possession of the accused; e. The time of the creation of the material; f. The time period covered by the material; g.The knowledge of the parties sharing the material at the time; in other words, identify whether the parties knew the material was being shared and who it was being shared with; h.The purpose for which the material was provided to the accused; i.

Whether the material includes any information that might be typically contained in any of the items listed in s. 278.1 ; j. Any suggestion in the material that the information will be kept private, or alternatively, any suggestion in the material that the information can be shared; k.Whether the material includes any information that could constitute other “sexual activity” for the purposes of s. 276 of the Criminal Code ;

3. The accused is not required to disclosure the actual material to the Crown or to the complainant until a determination is made as towhether the material is a record; 4. The accused shall provide the material to the court in a sealed envelope and that sealed envelope shall be made an exhibit at thehearing of the application; 5. The judge hearing the application will determine whether the court needs to review the material in order to assess whether areasonable expectation of privacy exists and therefore the material is a “record” as defined by the Criminal Code; 6. Once the court has reviewed the records, it may supplement the

summary if it feels that some further information is required toallow the Crown to make submissions; 7. The complainant is not entitled to notice of these proceedings and is not entitled to participate in this phase of the proceedings; 8. This hearing should be conducted in camera, and there should be a publication ban. [20] The procedure includes a pre-trial application by the accused for a determination as to whether the communications are“records”, as has occurred in this case. Mr. K. has provided a sealed copy of the communications to the court. I have reviewed thosematerials.

If I deem the materials not to be records, then they are not disclosed to the Crown or the complainant, they remain sealed inthe court file for potential appellate review, the application is concluded, and the materials can be used at trial by Mr. K. If I deem thecommunications to be records then they are presumptively inadmissible and Mr. K. is required to make an application in accordance withthe procedures set out in ss. 278.93 and 278.94 for a determination of their admissibility. Records generally [21]

Section 278.1 defines a “record” for the purpose of an application under s. 278.92. None of the items in question in the instantcase have a sexual component, nor do they fall within the illustrative list set out in s. 278.1. Instead, I must determine whether any of thematerial constitutes “any form of record that contains personal information for which there is a reasonable expectation of privacy”. In R.v. Quesnelle, 2014 SCC 46, Karakatsanis J., for the court, discussed the definition of a record in s. 278.1, by reference to the regime setout in R. v. Mills, (SCC), [1999] 3 S.C.R. 668.

She said: [20] The determination of whether a document counts as a “record” involves two inquiries. First, does the documentcontain personal information for which there is a reasonable expectation of privacy? Second, does it fall into the exemption forinvestigatory and prosecutorial documents? I consider these questions in turn.

(1) Documents Attracting a Reasonable Expectation of Privacy (

a) 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 isa “record” covered by the regime, without seeing the specific document. Only if the judge decides that the document is likely relevant toan 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 will thejudge 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 of document atissue. [22] The definition of “record” is broad and non-exhaustive.

Section 278.1 provides an illustrative list of some of thetypes of records that usually give rise to a reasonable expectation of privacy.

However, documents that do not fall into the listedcategories will still be covered by the Mills regime if they contain information that gives rise to a reasonable expectation of privacy. [Emphasis added] [22] In discussing what constitutes a reasonable expectation of privacy in the context of police reports, Karakatsanis J. said: [27] The assessment of whether there is a reasonable expectation of privacy for purposes of s. 278.1 of the CriminalCode draws on the jurisprudence applying s. 8 of the Canadian Charter of Rights and Freedoms:...

That jurisprudence establishes thatexpectations of privacy must be assessed in light of the “totality of the circumstances”… The circumstances (or nature of therelationship) in which information is shared are not determinative: the reasonable expectation of privacy is not limited to trust-like,confidential, or therapeutic relationships. … [29] A reasonable expectation of privacy is not an all or nothing concept:… A person may have a reasonable expectationthat the state will not have access to her hotel room, even if she fully expects hotel staff to enter the premises:…discussing R. v.Dinh, 2001 ABPC 48, 42 C.R. (5th) 318.

Equally, a person may divulge information to an individual or an organization with theexpectation that it be used only for a specific purpose:… The same principle applies to disclosure to the police. … [34] The disclosure of the information described above engages complainants’ and witnesses’ “[i]nformational privacy”,“the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them iscommunicated to others” (Tessling, at para. 23, quoting A. F. Westin, Privacy and Freedom (1970), at p. 7).

As L’Heureux-Dubé J.observed in 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 of

privacy therein is thereby displaced, the invasion is not with respect to the particular document or record in question. Rather, it is an invasion 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 free and democratic society.

The disclosure of police occurrence reports that contain intimate personal information ― such as details of previous allegations of sexual assault ― may do particularly serious violence to the dignity and self-worth of an affected person. [35] The Mills regime regulates disclosure in the context of a criminal trial: information that is disclosed will often be exposed in court.

Significantly, even where the information is not used in the trial, it will certainly be seen by the accused, who will often be known to the affected person, and whose use of the information is not subject to the legal oversight of the Charter or privacy legislation that applies when such information is given to law enforcement.

Consequently, disclosure may involve a more serious violation of the complainant’s dignity than disclosure to the state. [36] There are tangible harms associated with disclosure of personal information in the context of prosecutions for sexual offences, particularly when information about the complainant is disclosed to the person accused of sexually assaulting her. In the

preamble to the legislation enacting the Mills regime, Parliament recognized “that the compelled production of personal information may deter complainants of sexual offences from reporting the offence to the police”.

Victims of sexual offences will be less likely to come forward if they know that doing so will entail disclosure of their past interactions with police to the very person who they claim has wronged them. (iv) The Effect of Third Party Disclosure on Expectations of Privacy [37] It bears repeating that privacy is not an all or nothing concept; rather, “[p]rivacy interests in modern society include the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged” ( Mills , at para. 108 ).

Consequently, the fact that information about a person has been disclosed to a third party does not destroy that person’s privacy interests. Because the contents of occurrence reports will be disclosed under certain circumstances does not mean that there is not a reasonable expectation of privacy in those records. [Emphasis added] [ 23 ] The Crown has conceded that disclosure including the May 9 police statement relating to the non-sexual assaults can be relied on by Mr. K. without an application. Of course, Mr.

K. already has possession of the remaining materials in question, as the communications were sent directly to him by T.O. (with the exception of the communications between T.O. and Mr. H.). Therefore, some of the philosophical concerns raised in Quesnelle regarding intrusions on privacy arising from disclosure of police information to an accused are irrelevant here.

The court in Quesnelle ultimately determined that the privacy analysis turns on a normative question of whether society would expect that the material in question be kept private. [ 24 ] Regarding privacy expectations in text messages generally, in R. v. Marakah, 2017 SCC 59 , McLachlin C.J. stated, for the majority: [17] Correctly characterized, the subject matter of the search was Mr. Marakah’s “electronic conversation” with Mr. Winchester:..To describe text messages as part of an electronic conversation is to take a holistic view of the subject matter of the search.

This properly avoids a mechanical approach that defines the subject matter in terms of physical acts, spaces, or modalities of transmission...It also reflects the technological reality of text messaging. [ 25 ] In R. v. Jarvis , 2019 SCC 10 , Wagner C.J., for the majority, explained that in determining whether a person has a reasonable expectation of privacy in relation to a voyeurism charge, all the circumstances must be taken into account.

After setting out a non- exhaustive list of considerations, the Chief Justice said: [30] I emphasize that the list of considerations that can reasonably inform the inquiry into whether a person who was observed or recorded had a reasonable expectation of privacy is not exhaustive. Nor will every consideration listed above be relevant in every case.

For example, recordings made using a camera hidden inside a washroom will breach reasonable expectations of privacy regardless of the purpose for which they are made, the age of the person recorded, or the relationship between the person recorded and the person who did the recording. In another context, however, these latter considerations may play a more significant role. The inquiry is a contextual one, and the question in each case is whether there was a reasonable expectation of privacy in the totality of the circumstances. [Emphasis added] Records under s. 278.92 [ 26 ]

Section 278.92 was specifically considered in R. v. R.M.R., 2019 BCSC 1093 . In that case the communications were not sexual in nature. They were communications between the complainant and the accused going to the accused’s defence, as opposed to advancing the state’s prosecution of an accused. In rejecting the possibility of a broad sweeping allowance of such evidence, MacNaughton J. examined the Parliamentary debates that led to the enactment of s. 278.92: [33] In my view, it is too simplistic to conclude that, by sending the text messages to R.M.R., D.H. has waived any privacy interest she had in them.

Her expectation of privacy was not waived for all purposes. For example, D.H. would not expect that her text exchanges would be disclosed by R.M.R. publicly, or posted to the internet, or sent to a potential employer, or, for that matter, used to impeach her credibility on matters that are not relevant to the charge in question. [34] A review of the legislative proceedings with respect to Bill C-51 shows that the impact of the amendments on the admissibility of text messages between a complainant and an accused was debated.

Parliament received submissions proposing an amendment to the Bill to clarify that records of correspondence between a complainant and an accused, in which there is a joint privacy interest, did not fall into the regime. [Emphasis added]

[ 27 ] MacNaughton J. went on to refer to the Senate Debates on the provision in 2018, which indicated that the proponents of the amendments were of the view that the new process did not impinge on fair trial rights because it has no more than a requirement that the accused disclose, as is required in some other contexts, such as alibis.

It was also submitted that there was no infringement of the right to silence, because there is no requirement for the accused to testify. ( R.M.R . at para. 35 ). [36] After reviewing the legislative records, I am satisfied that the amendments implementing the s. 278.92 regime contemplate that text message communications between an accused and a complainant would be subject to the new process. That was the intended effect of Parliament in enacting these new procedural requirements.

Further, the legislative intent of the new regime was to address a perceived gap in the protection of privacy interests of complainants, and other witnesses, when private records are already in the hands of the accused and the s. 278.3 two-stage process did not apply. [37] The inclusion of examples in s. 278.1 of the type of records which contain personal information for which there is a reasonable expectation of privacy does not, in my view, limit the type of records contemplated to the examples given.

The definition is inclusive, and whether a document is a record is to be decided in the context of the privacy interests in a specific case. [Emphasis added] [ 28 ] In determining that the text messages were records in R.M.R .¸ Justice MacNaughton said: [38] In this case, I find that D.H. has a reasonable expectation of privacy with respect to the text messaging records between herself and R.M.R.. They contain personal information in the form of communications between her and R.M.R. over a period of time.

The messages include the parties’ thoughts, feelings, details of their daily activities, preferences, friendships, and social interactions. These communications were sent between the two of them and were not intended to be shared with the public.

While it is possible that R.M.R. could have taken a screenshot of a text message from D.H., and shown it to someone else, absent an express waiver of D.H.’s privacy interest in the texts, or an order under s.278.1 , he should not be permitted to share them with a jury and, ultimately, the public. [39] I find that in this case, the text messages between D.H. and R.M.R. are “records” under s. 278.1 and are, therefore, subject to the new requirements under s. 278.92. [Emphasis added] [ 29 ] In R. v.

Mai, 2019 ONSC 6691 , Roberts J. considered the requirements of s. 278.92 and said: [20] I would divide the relevant circumstances into two broad categories: namely, the nature of the information contained in the record, and the context in which the record was created and obtained by the accused. I do this for two reasons. First, I believe it makes sense to begin by looking at the content of the record in light of purpose of the legislation, namely to protect the privacy and equality rights of the complainant. As Justice Moldaver recently reminded us in R. v.

Barton , 2019 SCC 33 , protecting the privacy and equality rights of complainants remains a vital concern in society, requiring action, including by the courts. The content of a record is what is most important in protecting these rights. Second, the nature of the information will in many, if not most, cases be determinative of the threshold question.

For example: • If the record contains information that falls within the broad definition of "sexual activity" in s.276(4) (once again, "any communication made for a sexual purpose or whose content is of a sexual nature") the procedure set out in sections 278.93 and 278.94 in [sic] engaged.

There is no need to go on to consider whether there is a reasonable expectation of privacy in the record in the totality of the circumstances. • If the record falls within one of the enumerated categories set out in s.278.1 (medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries), the procedure set out in sections 278.93 and 278.94 is engaged. • If the record falls within the further included category of "records containing personal information the production or disclosure of which is protected by any other Act or Parliament or of a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence", the procedure set out in sections 278.93 and 278.94 is engaged. [21] Only where a record does not fall within one of the above categories is it necessary to go on and consider the context of the record.

There is one caveat to this, however. If a record falling outside the above list clearly does not contain personal information, there is no need to go on and consider its context. It falls outside the scope of the scheme.

For example, in this case, the Crown acknowledged that to the extent the electronic communications simply concerned making arrangements between the complainant and the accused to meet on a particular date and time, they did not contain "personal information" so as to engage the s.278.92 regime. [22] Where a record falling outside the above list arguably does contain personal information, I believe it is essential to also look at the context in which the record was created, and obtained by the accused, in order to decide whether there is a reasonable expectation of privacy in the record in the totality of circumstances.

All the circumstances, including the content of the record and its context, must be considered cumulatively, and in totality.

The context of the record includes circumstances such as the following: • The relationship between the parties to the record (new friends, casual friends, good friends, old friends, family members, lovers…); • The manner of dissemination of the record (is it an open platform, a secure platform…); • The scope of dissemination of the record (does it involve two people, a closed group of intimates, a larger group, a shifting group…). [ 30 ] In Mai , the court examined the context in which the communications were made and the reasonable expectation of privacy and held that the WhatsApp communications between the complainant and the accused, some of which were also copied to a third party, were not records.

Justice Roberts said: [25] I appreciate that the fact that an accused possesses the potential "record" in question is not determinative of the analysis,

as s.278.92 is explicitly intended to apply to materials in the possession of the accused. But I believe the fact that a complainant chose to share the information found in the record with the accused is a relevant circumstance. In doing so, the complainant can usually be reasonably expected to contemplate a risk that the accused would seek to use that information to defend himself against a subsequent allegation by the complainant.

While the nature of that expectation will depend on the particular circumstances, I believe it does bear on a complainant’s expectation of privacy in the record. [26] Outside the special relationships explicitly enumerated in s.278.1 , and the s.8 context, it is our collective expectation that a speaker bears the risk that her listener will disclose her confidence. At common law, for example, spousal privilege rests with the recipient of the information, and is his or hers to waive. It does not rest with the speaker.

The common law has been adapted by the Canada Evidence Act , but s.4(3) still protects communications during marriage, and the privilege continues to rest with the recipient: No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage. [Emphasis in original] [ 31 ] In R. v.

W.M., 2019 ONSC 6535 , Davies J. held that Facebook communications between the complainant and the accused were not records, on the basis that the complainant deliberately shared the communications with the accused: [45] The fact that W.M. was the intended recipient of Facebook messages is a significant factor in deciding whether Ms. M.-A. can reasonably expect that they will be kept private and will not be used by the intended recipient. To the extent that the messages contain personal information about Ms. M.-A., she chose to share that information with W.M.

She also chose to do so in writing, knowing that she was creating an electronic record that W.M. could save and share with others. [46] The fact that Ms. M.-A. chose to share information with W.M. distinguishes the Facebook messages from the categories of records enumerated in s. 278.1 of the Code , none of which are created with the intention that they will be received by the accused. For example, medical or counselling records are created for a specific and limited purpose of providing care to the complainant.

When personal information is shared with a particular person for a limited purpose, it is understandable that a complainant may have a reasonable expectation that that information will not be used by other people for another purpose. There is no suggestion that Ms. M.-A. sent the messages to W.M. for any limited or specific purpose. In addition, the messages do not contain any express or implied request by Ms. M.-A. to keep the content of the messages private and not use them or further disseminate them. [47] I recognize that this factor imports a risk analysis into the decision of whether Ms.

M.-A. has a reasonable expectation of privacy over information she shared with W.M. As the courts have repeatedly said, risk of further dissemination is not determinative. It is nonetheless relevant that Ms. M.-A. chose to give W.M. the information he now wishes to use and she did so in a manner that she knew would create a permanent record that he could save.

The kind of risk at issue on the facts of this case is quite different from the risk at issue in Duarte or Marakah , namely that the state might intercept or make a permanent record of the communication. … [50] Regardless of how their relationship is characterized at the time the messages were sent, it is important to consider the nature of their relationship now. Ms. M.-A. has made very serious allegations against W.M. They are now in an adversarial relationship. Just as it would not be reasonable for W.M. to expect Ms.

M.-A. to keep information about him private that would enhance the reliability and credibility of her testimony it is not, in my view, reasonable for Ms. M.-A. to expect that W.M. will continue to keep private, but not sexual electronic communications which might advance his defence. Again, the messages here do not constitute sexual activity and do not engage s. 276 of the Code. There is nothing about the content of the messages that would compromise Ms.

M.-A.’s dignity or personal security if she were asked about them in cross-examination. [Emphasis added] [ 32 ] In discussing the possible Charter and trial fairness implications if electronic communications sent to the accused by the complainant, and in the possession of the accused, are treated more restrictively than electronic communications in possession of the complainant sent by the accused, Davies J. said: [52] If Ms.

M.-A. has a reasonable expectation of privacy in the Facebook messages exchanged with W.M. during their relationship, it would follow that W.M. also has a reasonable expectation of privacy over those communications. In this case, the electronic communications are relevant to the defence. In many cases, however, electronic communications between the complainant and an accused will be helpful to the Crown in that they contain admissions from the accused or corroborate the complainant’s evidence.

Complainants often give the investigating officer or the Crown copies of electronic communications they set to and received from the accused. If an accused retains a reasonable expectation of privacy in electronic communications he sent to and received from the complainant, his s. 8 rights would be engaged when the Crown or police take possession of them.

In other words, if the accused retains or might retain a reasonable expectation of privacy over messages he sent to the complainant, the police may well be required to get a warrant to take copies of them from the complainant. [53] Although the Supreme Court of Canada deliberately declined to rule on this issue in Reeves , it seems impractical and unworkable to require the state to obtain a warrant to take copies of messages a complainant sent to the accused if they corroborate her allegations.

However, that may well be the result of a ruling that the sender of an electronic message always or usually retains a reasonable expectation that the recipient of the message will keep it private. [54] In addition, as set out above, interpreting the definition of “record” in an expansive manner to include any private communication between an accused and complainant may well infringe W.M.’s s. 7 rights . The Facebook messages are prior statements by the complainant that may well be inconsistent with her testimony at trial.

Cross-examination witnesses on prior inconsistent statements is one of the most important means of testing their credibility and reliability. Requiring the defence to disclose prior statements which may be inconsistent with evidence given at trial before the witness testifies could seriously undermine the accused’s rights under s. 7 of the Charter .

[55] The potential Charter implications, therefore, support a more narrow

interpretation of the phrase “reasonable expectation ofprivacy” in this context. [Emphasis added] [33] In R. v. S.L., 2019 NSSC 408, Murray J. considered whether an audio recording in the possession of the accused was a record. In determining that it was not a record, Murray J. explained: [14] The fact that legislation made such records presumptively inadmissible in the hands of the Accused does not in my view alter orimpact the definition of record.

It could be argued that there is less flexibility for the Court in making the determination, but ifparliament wished to restrict or expand the definition of record, they could have, but they did not. I will therefore turn to discuss Mills,and other cases that touch upon this issue. [15] Mills says that to fall within the definition, the record must pertain to a "truly recognizable privacy interest". In the context ofan accused's right to cross-examine, the record in question should clearly fall within the definition. I am not satisfied that it does, notsimply because the accused was present (R v.

Clifford, (2001), (ON CA), 163 C.C.C. (3d) 3 (Ont. CA)) althoughthat is a factor mentioned in RMR (para. 70). Unlike RMR, the content of the recording in this case is not overly sensitive and theimpact on the privacy interest if disclosed is minimal (R v. Quesnel, 2014 SCC 46 , [2014] 2 S.C.R. 390). An allegation offabrication in a criminal trial is hardly the kind of personal interest that is considered private and is hardly foreign to the public domain.

Even the subject matter, their marital assets, would have to be considered a limited privacy interest in the context of a serious criminaltrial. [16] I have read the submissions, and I am inclined to agree with the position the parties have taken. As broad as the definition is,there must be some boundary on what constitutes a "record", and I do not think this is the kind of "personal information" that wasintended to be captured by these provisions. Any claim to a reasonable expectation of privacy is tenuous at best, given the context.

Itseems to me that the effect of classifying this as a record would effectively be to suggest that any statement made by a complainant to anaccused, regardless of the context or the subject matter, would potentially fall into this category. I doubt that Parliament intended it to bequite that broad. As mentioned, there is guidance in the Criminal Code and in caselaw as to the purposes and

interpretation of theseprovisions. If they were interpreted to cover literally any communication between the complainant and the accused that happened to bewritten down or recorded, that would have an impact on fair trial rights beyond what Parliament would have intended. In closing, I referto the majority in Mills, at paragraph 99, where they referenced R. v. Regan (1998), (NS SC), 174 N.S.R. (2d) 230(S.C.), for the principle that “[o]nly documents that truly raise a legally recognized privacy interest are caught and protected.” [34] In R. v.

X.C., 2020 ONSC 410, Dawe J. considered the comments in Marakah in the context of a s. 278.92 application, andspecifically whether there was a distinction between a spoken conversation and an electronic one: [59] As the Supreme Court of Canada noted in R. v. Marakah, 2017 SCC 59 at para. 17, text messages can best be thought of as an“electronic conversation”. In general, a witness can give evidence about things that were said to him or her in a spoken conversation,provided that the evidence is relevant and does not run afoul of any exclusionary rule.

The same is true of information conveyed to awitness in a “conversation” that happens to occur through the medium of text messaging. In the case at bar, Mr. C. will be entitled totestify at trial about things Ms. Z. said to him via text message without having his evidence judicially pre-screened, as long as hisevidence does not engage s. 276 or some other exclusionary rule. His lawyers will also be entitled to use information gleaned from thetext messages in their possession, or from other text messages that Mr. C. did not retain copies of but still remembers, when formulatingquestions to ask Ms.

Z. and other witnesses. Whether or not the retained text messages qualify as “records” within the meaning of s 278.1and s. 278.92, the latter

section says nothing about how “records” in the possession of the defence can be used out of court, or howthe information in such records can be used in court if the records themselves are not “admitted in evidence”. [Emphasis in X.C.] [35] Justice Dawe went on to consider whether the contents of the text messages would become evidence at trial, whether or not thehard copies are admitted: [61] In my view, the fact that Ms. Z. cannot expect the relevant contents of her text messages with Mr.

C. that fall outside the scope ofs. 276 not to be made public in court is a significant factor when considering whether she has any reasonable expectation of privacy thatwould be affected if the text messages themselves were “admitted in evidence”. This factor will not necessarily be determinative.

Forinstance, if a text message exchange contains only a small amount of relevant information that is mixed together with a larger quantity ofirrelevant “personal information”, the complainant might well have a reasonable expectation that this latter information will not beexposed at trial, which could be undermined if the unedited text messages themselves were “admitted in evidence”.

However, insituations where the information communicated in a text message exchange will emerge at trial in any event, adducing the text messageitself as an objective record of this communication may not cause any further impingement on the complainant’s reasonable expectationsof privacy. See, e.g., R. v.

Ali, 2020 ONCJ 8at paras. 28-30. [62] It follows from this that I do not agree with the Crown’s position that text messages should always be considered “records” withinthe meaning of s. 278.1 and 278.92 if the complainant expected at the time they were sent that their contents would remain private inrelation to at least some people other than their intended recipient. This sweeping approach is inconsistent with the reasoning of mycolleagues Davies J. in R. v. W.M., supra and Roberts J. in R. v. Mai, supra.

While their decisions are not binding on me, as a matter ofjudicial comity I should not depart from their analysis unless there is a “cogent reason” for me to do so. See R. v. Scarlett, 2013 ONSC562at para. 43. I am not satisfied that there is any such cogent reason here; rather, I substantially agree with their approach. I am also notpersuaded that the Crown’s proposed approach is justified as a matter of legal policy, given the limited reach of s. 278.92.

It would serveno useful purpose to subject a complainant’s “electronic conversations” with the accused to the elaborate s. 278.93 judicial pre-screeningprocess in every case, even when the information at issue will emerge at trial in any event. [Emphasis in original] [36] In R. v. J.K., 2021 ONSC 7604, Schreck J. held that Facebook messages between the complainant and the accused that thecomplainant provided to the police, and which were then disclosed to the accused, were not records. He endorsed a two-stage analysis

whereby a judge would first consider the nature of the information in the record, and the context in which the record was created andobtained by the accused. In J.K., some of the communications involved the thoughts and feelings of the complainant and therefore thecontext of the creation of the record was considered. Justice Schreck considered whether the “risk analysis” approach was anappropriate consideration regarding s. 278.1, outside the context of s. 8 of the Charter, and said: [24] The communications in this case were voluntarily made by the complainant to the applicant.

Unlike records in the hands ofthird parties, the issue here is not whether the accused will or should become privy to the communications. He is already privy to thecommunications because the complainant sent them to him. Rather, the issue is whether the communications can be used at trial: R. v.A.M., 2020 ONSC 1846, at para. 116. In my view, two things follow from this. [25] First, although the Supreme Court of Canada has rejected a “risk analysis” in determining whether there is a reasonableexpectation of privacy in the context of s. 8 of the Charter (see R. v.

Duarte, (SCC), [1990] 1 S.C.R. 30, at pp. 43-44; R. v Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 40-41), such an analysis may be appropriate in the context of s. 278.1. Inthis regard, I agree with Roberts J.’s analysis in Mai, at para. 23: This contextual assessment is essential because I believe that a “risk analysis” forms an important part of assessing whether there is areasonable expectation of privacy in the totality of circumstances. I recognize that the Supreme Court in R. v.

Duarte, (SCC), [1990] 1 S.C.R. 30, emphatically rejected a risk analysis as a legitimate consideration in the context of s. 8, noting, among otherthings, that the risk that the listener will “tattle” on the speaker, is of a different order of magnitude than the risk that the state is listeningin and making a permanent recording. While the speaker may contemplate the risk of the former, it cannot reasonably be concluded thathe contemplated the risk of the latter.

However, outside the s. 8 context, that is, where it is not the state that obtained the record, I believethat the risk analysis has an important role to play in assessing whether or not a complainant has a reasonable expectation of privacy in arecord. [37] Justice Schreck held that the relevant timeframe to determine whether a reasonable expectation of privacy exists is the time ofthe application, not when the communications were made, given that the purpose of s. 278.92 was to protect the complainant’s privacyinterest during the trial process (para. 26).

He acknowledged authority to the contrary, but declined to follow it: [27] I recognize that there are authorities that take a different view: [R. v. T.A., 2020 ONSC 1846] at paras. 26-31; R. v.Green, 2021 ONSC 2826, at para. 29; R. v. Debus, 2020 ONSC 7746, at para. 38.

It was suggested in T.A., at para. 28, that consideringthe current nature of the relationship between the complainant and an accused “lowers a woman’s privacy rights because of a theory thatshe should have anticipated that she might be sexually assaulted and have to testify in a criminal prosecution against someone she oncechose to confide in.” Leaving aside the obvious inconsistency between this line of reasoning and the presumption of innocence, itignores the reality of situations where an accused has possession of communications between him and the complainant.

Subject to theordinary rules of evidence, the accused is entitled to make such use of the information in the communications as he sees fit to advancehis defence.

As Dawe J. noted in X.C., at para. 58, [I]t is … significant that s. 278.92 is narrower on its face than s. 276 in the sense that it only limits the defence’s ability to put the recorditself into evidence, but does not place any restrictions on the defence’s ability to use or “adduce” the information in the record. [Emphasis in original]. [28] It is an unfortunate reality that criminal trials often result in private information being revealed in a public forum.

The factthat the information is going to be revealed in any event must necessarily inform the question of whether any expectation of privacy withrespect to material containing the information is reasonable.

The fact that a complainant knows that she can be cross-examined on whatshe said in an electronic message is relevant to the reasonableness of any expectation of privacy she may have in relation to the messageitself: A.M., at para. 116. [38] Justice Schreck further reasoned that the fact the complainant and the accused were former partners at the time thecommunications were made, whose “interactions were marked by tension, if not acrimony” (para 29), also reduced any reasonableexpectation of privacy. [39] As noted in J.K., in R. v.

T.A., 2020 ONSC 2613, the court took a very different approach to ascribing weight to therelationship between the parties and the temporal assessment of the reasonable expectation of privacy. Gomery J. held that “only therelationship at the time the information was shared with the accused is relevant” and that “no weight should be placed on the relationshipa complainant has with the accused as a result of the criminal complaint” in assessing the expectation of privacy (paras. 23, 26). GomeryJ. gave three reasons for this view: [27] There are three reasons for this.

First, this adversarial relationship is the foundation for s. 278.1, and as such should not be anargument to restrict its scope. Second, someone disclosing private information to another person could not reasonably be expected tocontemplate the possibility of an assault by that person and its legal consequences. Third, giving weight to the current relationshipundermines the purpose of s. 278.1. [28] The recognition of the competing interests between the complainant and the accused is the very reason why Parliament hasenacted new protections for privacy interests in s. 278.92 and other provisions.

Section 278.1 presupposes a prosecution. Absent thepitting of the accused’s right to a fair trial on criminal charges against the complainant’s privacy interests, the court would have no basisto limit the accused’s use of a complainant’s personal information. Since these competing interests are the premise of the analysis to beundertaken under s. 278.1, there is a circularity in using it as an argument for limiting the complainant’s reasonable expectation ofprivacy. In doing so, the court is second-guessing the raison d’être of the new legislation. [29] Second, a focus on the current relationship projects an unreasonable retrospective set of expectations on the complainant.

Section 278.1 should not be read in such a way that lowers a woman’s privacy rights because of a theory that she should have anticipatedthat she might be sexually assaulted and have to testify in a criminal prosecution against someone she once chose to confide in. This lineof thinking has the troubling implication that a complainant is somehow responsible for a potentially harrowing experience in the contextof a sexual assault trial, based on her past poor choices about entrusting personal information. Beyond this, no one should be held to

have “reasonably” expected that they might be the victim of a violent, illegal act. [30] Finally, emphasizing the current adversarial relationship between the complainant and the accused fundamentally underminesthe purpose of s. 278.1. When a victim of sexual assault makes a criminal complaint, she necessarily sacrifices some expectation ofprivacy – she must, at a minimum, disclose sexual activity with another person.

The goal of the new legislative protection is to ensurethat the complainant’s dignity and privacy rights are not compromised more than is strictly necessary, while safeguarding thepresumption of innocence and the accused’s right against self-incrimination. The first step is the characterization of records that theaccused wants to use, under s. 278.1.

If the scope of this provision is read too narrowly, by focusing unduly on the competing nature ofthe accused’s substantive and procedural rights and the complainant’s privacy interests, the court will never get to the second stage of theanalysis under s. 278.93, when it can weigh the broader interests at stake set out in s. 278.92(3). [31] It is the relationship at the time the complainant shared information with the accused that is clearly relevant to the assessmentof the complainant’s reasonable expectation of privacy.

If the two were strangers at the time, this would undermine the argument theinformation was highly personal or that the complainant understood that she could trust the accused to keep the information to himself.

If, on the other hand, the complainant and the accused had a close relationship, the court could infer that they might confide highlypersonal information to each other, expecting that it would be kept confidential. [40] With respect, as Schreck J. pointed out in J.K. at para 27, Gomery J.’s assessment on these issues reverses the burden of proofand displaces the presumption of innocence, as it presumes the guilt of the accused and the veracity of the complainant. [41] The Crown in the instant case relied on R. v.

Craig, 2016 BCCA 154, where Bennett J.A., for the court, considered thereasonable expectation of privacy in relation to e-mails. Justice Bennett said the sender of an e-mail did not lose all reasonableexpectation of privacy simply by sending it. In holding that there was a reasonable expectation of privacy in the circumstances, BennettJ.A. said: [106] The primary argument raised against an expectation of privacy is the sender’s “loss of control” over the message once sent. Inother words, it was argued that Mr.

Craig abandoned his privacy interest in the messages once he placed them within the power of therecipients to disclose. The trial judge found that this factor eroded Mr. Craig’s expectation of privacy: “He knew or must have knownthat those who he wrote to could share his messages with anyone they chose”: Reasons at para. 122. Indeed, there was no guarantee thatthey would not. [107] With respect, the learned trial judge fell into error with the emphasis he placed on loss of control over the messages and risk thatthe third party would disclose them.

As I will discuss below, Canadian courts have generally rejected the “risk analysis” approach. Ourjurisprudence charted a different course from the loss of control doctrine found in United States which underpins risk analysis.

ModernCanadian social norms, legislation, and jurisprudence all suggest that a reasonable expectation of privacy is not automatically forfeited inthe context of private online communications. [42] In rejecting the risk analysis approach in the context of an accused’s reasonable expectation of privacy, Bennett J.A. cited R. v.Duarte, (SCC), [1990] 1 S.C.R. 30, where it was held that a “risk that the second party in a conversation may divulge itto others is irrelevant to the central question of whether [such individuals] have a reasonable expectation that the police cannot siftthrough their private communications without prior judicial authorization” (Craig at para. 108; emphasis by Bennett J.A.).

JusticeBennett continued: [112] Risk analysis finds its origins in the proprietary concept of a loss of control. While search and seizure law may have had itsorigin in property law, Canadian courts have progressively decoupled its influence on the development of s. 8. Instead, our courts tend tofocus on privacy interests in the subject matter of the search rather than proprietary interests: Hunter at 157-159.

This is especially truewhen informational privacy interests are engaged in the context of searches of digitized information: see e.g., Cole; Spencer; Pelucco. … [116] Thus, in my view, emphasizing the proprietary concept of a “loss of control” over information as the deciding factor isinconsistent with existing Canadian law. Accordingly, although ownership and control of the subject matter of the search are relevantconsiderations, they are not determinative nor should it be given undue weight, as the trial judge did here: R. v. Buhay, 2003 SCC 30atparas. 22-24; Cole at para. 51.

In the present case, the fact that copies of the accused’s messages were stored in the account of others isnot determinative. The accused still authored the content of the messages. [43] Justice Bennett stated that “it is reasonable for the sender of private online messages to expect those messages to remain privatein the recipient’s account” (para. 118). She cited R. v. Pelucco, 2015 BCCA 370, to the effect that “the social norm is to expect that textmessages remain private communications between the sender and recipient” (Pelucco at para. 65, cited in Craig at para. 119).

Themessages in question exposed “intimate details of [the sender’s] lifestyle, personal choices, and private identifying information”,supporting the reasonableness of an expectation of privacy (para. 132). Bennett J.A. continued: [133] Justice Sopinka discussed the purpose behind s. 8 of the Charter in the context of informational privacy in Plant. The Courtsignalled that Charter protection will attach to information meeting the “personal and confidential” standard at 293: … in order for constitutional protection to be extended, the information seized must be of a “personal and confidential” nature.

Infostering 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 control fromdissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices ofthe individual. [Emphasis added.] [134] I point out that Sopinka J. wrote of information which an individual “would wish” to control dissemination of to the state

(emphasis added). The Court did not limit its reasoning to only information the individual actually had the power control. In fact, the court explicitly rejected the lower court’s focus on a proprietary interest in the data (at 292). [135] In Cole , the Court explained that “the more personal and confidential the information, the more willing reasonable and informed Canadians will be to recognize the existence of a constitutionally protected privacy interest” (para. 46).

The information at issue was browsing history and personal files which tended to reveal the accused’s “interest, likes, and propensities” (para. 47). The Court placed great emphasis on the nature of the information in its analysis, describing it as both highly revealing and meaningful to his personal life (paras. 49, 58). This type of information was determined to lie at “the very heart of the ‘biographical core’ protected by s. 8” (para. 48). [136] The Supreme Court of Canada emphasized the high expectation of privacy individuals have in electronic storage devices (personal computers and smartphones) in R. v.

Morelli , 2010 SCC 8 at para. 2 ; Cole ; and R. v. Vu , 2013 SCC 60 . The Court was not concerned with a privacy interest in the physical hardware itself, but rather, in the content of the files contained within them. [137] Private online communications can be the written expression of an individual’s thoughts, views and feelings revealing intimate and personal information about their interests, likes, and propensities. [ 44 ] Justice Bennett went on to comment on the expectations of privacy in the messages at issue, and to hold that the sender had standing to challenge the searches under

section 8 of the Charter : [141] The nature of the information is informed by the circumstances in which it was divulged. Mr. Craig privately communicated with several underage girls. In one instance, E.V., who was an underage girl, explicitly told Mr. Craig she was not trusted by her parents and the two discussed making up a lie so she could meet with him. He discusses having a sexual encounter with E.V., providing liquor to minors, and illicit drug use. Anyone discussing such matters in a private chat would expect a certain measure of confidentiality.

Justice Groberman’s observation is apt here: “[i]t would strain credulity to suggest that a reasonable person would have engaged in such a conversation if they thought that the messages would be shared with others”: Pelucco at para. 53 . … [142] Applying the framework above, and thereby taking into account all of the circumstances, in my view, Mr. Craig’s expectation of privacy in the messages seized by the police was objectively reasonable.

Although the messages were retrieved from third party accounts, he created the content, and they exposed highly revealing information, were not within public view, and were not expected to be circulated. Accordingly, and applying the correct legal principles, I would find that Mr. Craig has standing under s. 8 to challenge the searches, and the trial judge erred in concluded that he did not.

Analysis [ 45 ] Based on the authorities reviewed above, I am satisfied that several of the communications at issue are “records” requiring admissibility determinations under s. 278.92, but most are not. [ 46 ] Parliament did not change or expand the definition of record in s. 278.1 when they introduced s. 278.91.

Section 278.1 does not define a record as any communication between the complainant and others. [ 47 ] There are many examples in criminal law where the state faces greater restrictions on admissibility of evidence than does the accused, such as surreptitious recording of conversations and cross-examination on previous criminal behaviour. [ 48 ] When determining whether or not the electronic messages in Mr. K.’s possession are “records” subject to a s. 278.92 application, I must consider whether they contain personal information for which there is a reasonable expectation of privacy.

This involves a contextual assessment that takes into account the totality of the circumstances, including the following: 1. The fact that the accused person is defending himself from prosecution for a serious crime, as opposed to the state seeking to prosecute an alleged crime; 2. All of the communications in question in the instant case are direct conversations between the complainant and the accused, or between the complainant and the accused’s father; 3.

The accused came into possession of all of the communications because they were sent directly to him, with the exception of those between the complainant and his father, which were given to him by his father. The accused did not come into possession of the communications surreptitiously; 4. If a complainant in a criminal case provides to the police or the Crown inculpatory electronic communications by the accused made directly between them and the accused, those communications are generally admissible as admissions against the interest of the accused.

However, they are disclosed to the accused in accordance with Charter principles regarding fair trials and the right to make full answer and defence; 5. As noted in cases such as Craig , risk analysis is not used in Canada in the context of determining the admissibility of state intrusion into an accused’s Charter protected rights. However, this situation does not involve state intrusion; 6. Electronic communications like those in question in the instant case are regularly admitted in family law proceedings without any special application (see, e.g. Peters v. Reginato , 2016 NSSC 345 at para. 32 ; Sampson v.

Sampson , 2019 NSSC 169 , at para 40 ); 7. The nature of the relationship between the complainant and the accused is of some significance. In this case they had been in an intimate relationship which had ended, and communications were ongoing, tense, and acrimonious; 8. None of the communications have a sexual component;

9. All of the communications are personal in nature, but they do not necessarily show indicia that would support considering them to be private; 10. Some of the communications involve comments by the complainant regarding either the accused making a police complaint about her, or her making a police complaint about the accused; 11. The communications involved a variety of mediums, including text, Snapchat, Facebook Messenger and voicemail. [ 49 ] Mr. K. provided the court with a tabbed book comprised of 32 separate electronic communications.

I previously provided counsel with a bare bones, bottom-line decision, advising simply that Tabs 1, 11, and 30 are records and therefore subject to further applications if Mr. K. wishes to rely on them at trial. The following is my decision in relation to the materials found at each tab of the booklet provided by Mr. K.: [ 50 ] #1 – November 17, 2018: These are electronic messages of a personal nature between two people involved in a relationship. There is a reasonable expectation of privacy; [ 51 ] #2 – March 18 - April 5, 2019: These messages involve persistent and often one-sided communication from T.O. to Mr.

K. wherein, when he does reply on occasion, he makes it clear that he does not want to hear from T.O. If a person spams another with unwanted messages, there is no objective and reasonable expectation of privacy in those messages. So, while T.O. may have subjectively intended these messages to be private, viewed contextually, there is no reasonable expectation of privacy; [ 52 ] #3 – February 9, 2019: These are messages where Mr. K. is asking T.O. to stop contacting him and she does not acquiesce.

Again, while T.O. may have subjectively hoped that the messages would be private, viewed contextually, there is no reasonable expectation of privacy; [ 53 ] #4 – February 10, 2019: T.O. is clearly aware from previous communications that Mr. K. does not want to hear from her, yet she still sent this message, which is very personal in nature. While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 54 ] #5 – February 6, 2020: These messages involve persistent and often one-sided communication from T.O. to Mr.

K. wherein, when he does reply on occasion, he makes it clear that he does not want to hear from T.O. While T.O. may have subjectively hoped that the messages would be private, viewed contextually, there is no reasonable expectation of privacy; [ 55 ] #6 – April 28, 2019: This message involves a one-sided communication from T.O. to Mr. K. wherein she indicates that she is aware that he does not want to hear from her.

While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 56 ] #7 – April 28, 2019: These messages involve one-sided communication from T.O. to Mr. K., wherein she mentions another friend of his. While T.O. may have subjectively hoped that the messages would be private, viewed contextually, there is no reasonable expectation of privacy; [ 57 ] #8 – April 29, 2019: This message involves one-sided communication from T.O. to Mr.

K., wherein she says she has obtained a new email address in an attempt to frustrate what she believes are his efforts at blocking her communications. While this message involves very personal information being communicated, and while T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 58 ] #9 – April 29, 2019: These messages involve persistent and often one-sided communication from T.O. to Mr. K. T.O. mentions that she is contemplating going to the police.

While T.O. may have subjectively hoped that the messages would be private, viewed contextually, there is no reasonable expectation of privacy; [ 59 ] #10 – April 30, 2019 : This message involves one-sided communication from T.O. to Mr. K. While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 60 ] #11 – May 2, 2019: These are electronic messages of a personal nature.

There is a reasonable expectation of privacy in relation to these communications; [ 61 ] #12 – May 2, 2019: These messages involve a back and forth between T.O. and Mr. K. wherein he says that he does not want any further communication with her and both parties discuss the possibility of involving the police. While T.O. may have subjectively hoped that the messages would be private, viewed contextually, there is no reasonable expectation of privacy; [ 62 ] #13 – May 3, 2019: This message involves one-sided communication from T.O. to Mr. K.

While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 63 ] #14 – May 3, 2019: This message involves one-sided communication from T.O. to Mr. K. While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 64 ] #15 – May 3, 2019: This message involves one-sided communication from T.O. to Mr. K.

While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 65 ] #16 – May 3, 2019: This message involves one-sided communication from T.O. to Mr. K. While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 66 ] #17 – May 3, 2019: This message involves one-sided communication from T.O. to Mr. K. While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy;

[ 67 ] #18 – May 3, 2019: This message involves one-sided communication from T.O. to Mr. K. While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 68 ] #19 – May 5, 2019: This message involves one-sided communication from T.O. to Mr. K. While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 69 ] #20 – May 7, 2019: This message involves T.O. asking Mr. K. to contact her and Mr. K. asking T.O. not to contact him anymore.

While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 70 ] #21 – May 7, 2019: These messages involve T.O. asking Mr. K. to contact her and asking him personal questions, and Mr. K. asking T.O. not to contact him any more. While T.O. may have subjectively hoped that the messages would be private, viewed contextually, there is no reasonable expectation of privacy; [ 71 ] #22 – May 8, 2019: This message is a one-sided communication from T.O. to Mr. K. that includes a reference to the police becoming involved.

While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 72 ] #23 – May 8, 2019: This message involves T.O. asking Mr. K. if he has been receiving her emails. While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 73 ] #24 – May 8, 2019: This message involves communication between T.O. and Mr. K. regarding the return of some personal items. T.O. mentions involving the police.

While T.O. may have subjectively hoped that the messages would be private, viewed contextually, there is no reasonable expectation of privacy; [ 74 ] #25 – May 8, 2019: This message involves a one-sided communication to Mr. K. While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 75 ] #26 – May 8, 2019: This message involves a one-sided communication to Mr. K.

While T.O. may have subjectively hoped that the message would be private, viewed contextually, there is no reasonable expectation of privacy; [ 76 ] #27 – May 8, 2019: This message involves communication initiated by T.O. with M.H. It involves T.O. introducing herself, alleging crimes by Mr. K. and her having made a police complaint. While T.O. may have subjectively hoped that the messages would be private, viewed contextually, there is no reasonable expectation of privacy; [ 77 ] #28 – April 2019 (exact date unknown): These are messages between Mr.

K. and T.O. wherein, when he makes it clear that he does not want to hear from her. T.O. sends him personal information and a threat to herself. While T.O. may have subjectively hoped that the messages would be private, viewed contextually, there is no reasonable expectation of privacy; [ 78 ] #29 – April 2019 (exact date unknown): These messages involve one-sided communication from T.O. to Mr. K. While T.O. may have subjectively hoped that the messages would be private, viewed contextually, there is no reasonable expectation of privacy; [ 79 ] #30 – (undated): This message is T.O. asking for Mr. K.’s location.

While there does not appear to be anything overtly of a private or personal nature involved in this communication, other than that it was sent from T.O. to Mr. K. direc

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