This week’s top three summaries: R v AM, 2020 ONSC 1846, R v TB, 2020 ONSC 1706, and R v Ali, 2020 ONSC 1719.

R v AM (ONSC) - summary by Kelsey Sitar

[March 25, 2020] Sexual Assault Reverse Disclosure - WhatsApp Text Messages - Definition of Records in 278.1 - Process on Reverse Disclosure Application - 2020 ONSC 1846 [Vanessa V. Christie J. ]

AUTHOR’S NOTE: In AM, Justice V.V. Christie of the Ontario Superior Court (Barrie) was asked to decide whether WhatsApp messages with the complainant retained by AM were “records” and, preliminarily, whether the Crown was entitled to copies of those messages to respond to this threshold application. In the decision that followed, Her Honour provides a comprehensive primer on preliminary motions regarding records in the possession of the accused. While the constitutionality of the regime was not challenged in AM, Christie J.’s underlying analysis may provide a “best chance” roadmap for the records in possession regime to survive such scrutiny. Through the procedures and considerations proposed, AM fills important gaps in the records regime while respecting Parliament’s intended balance between fair trial rights and the privacy interests of complainants.

Christie J. outlines an 8-step procedure to be followed when material does not fall within an enumerated category under s. 278.1 (para 70). Determining the Crown should receive only a summary of the material at the threshold stage, AM demands a clear demarkation between considerations relevant to this initial question and those informed by the complainant’s interests, triggered only if a reasonable expectation of privacy has been found. Recognizing the consequences that flow from material being held to be a “record,” Christie J. emphasizes the significance of this threshold determination. The procedure in AM ensures the accused’s s. 7 rights are preserved unless/until the records regime is found to be applicable.

Her Honour goes on to consider what might constitute a “record,” carefully delineating what can be drawn from s. 8 notions of privacy (vis a vis the state) in contextually analyzing the reasonableness of a complainant’s privacy expectation. The resultant analytical guide provides clear and thoughtful tools for determining whether the material at issue is a “record” under s. 278.1 (para 102).

AM is comprehensive, thoughtful and balanced. Its consideration of not just Ontario case law but existing jurisprudence nation-wide renders it likely to become a guiding authority to both counsel and courts as they attempt to navigate the uncertainties of this legislative regime.


  • Applicant brought a preliminary motion seeking an order that 278.1 and 278.92-4 of the Code do not apply to WhatsApp messages between the complainant and the Applicant that are in the Applicant’s possession – paras 5 & 6
    • Applicant further requested he not be required to disclose the messages to the complainant or Crown in order for this preliminary motion to be determined – para 6
      • Prior to determining the answer to this question, the Court did not review the material at issue (which had been provided in a sealed envelope) – para 9
        • After determining the answer to Question #1 was no, but prior to hearing argument on Question #2, the Court reviewed the contents of the WhatsApp messages – para 9
  • The two issues to be determined on the preliminary motion were:
    • Was the Crown entitled to receive the proposed material in order to make submissions as to whether it amounted to a “record”? – para 9
    • Was the material in the hands of the accused a "record" as defined in s. 278.1 of the Code. “In other words, does it contain ‘personal information for which there is a reasonable expectation of privacy’.” – para 9
  • In support of submission that the WhatsApp messages are not “records,” the Applicant contends:
    • They are not a “record” as defined in s. 278.1 – paras 5 & 6; and
    • “…the complainant has no reasonable expectation of privacy in the WhatsApp messages that were voluntarily exchanged with the applicant, innocuous in nature, and not obtained surreptitiously.” – para 6
  • In the alternative, the Applicant requested a hearing under ss. 278.92-4 to determine the admissibility of the WhatsApp messages at trial – para 7
  • Crown responds that the text communications fall within the scope of “records” and the complainant may have a reasonable expectation of privacy. In order to assist the Court on the issues it needs to determine, the Crown posited it needed to view the communications. The Crown agreed to undertake at the threshold stage not to show or describe those communications to the complainant – para 8

Background & Allegations

  • AM charged with a number of offences in relation to PU, who was married to AM at the relevant time – paras 12-13
  • PU was born & raised in Canada, while AM was born & raised in India. After their marriage was arranged by their families, they began speaking over social media applications including Skype and WhatsApp – para 14
  • They were married in India in August 2016. After a few weeks, PU returned to Canada for work. They continued to talk through Skype and WhatsApp, save a month-long visit by PU to India in February 2017. In September 2017, AM moved to Canada with PU as his sponsor, and they lived at her parents’ home – paras 14-17
  • PU testified at the preliminary hearing that her relationship with AM changed after he moved to Canada and he became abusive. In January 2018, she contacted police and AM was arrested – paras 18-20

The Legislation

  • The amendments to ss. 276 & 278 procedure as a result of Bill C-51 “…changed the landscape of the existing procedure and created an obligation on the defence where materials are already in their possession.” – para 21
  • “The amended and newly enacted provisions must be analyzed with a consideration of the legislative purpose and legal context within which the legislation was enacted. This legislation is part of the continuing effort to improve the response of the justice system to sexual violence, and to increase public confidence in that response. Parliamentarians were aware of the balance that needed to be achieved in drafting this legislation.” – para 22
    • Reproduced comments by Marco Mendicino (former Parliamentary Secretary to the Minister of Justice) in December 2017 describes the legislation as respecting fair trial rights of an accused by not preventing the use of relevant evidence in court while acknowledging privacy interests of a complainant – para 22
    • Reproduced comments by Jody Wilson-Raybould in June 2018 indicate that, in drafting the bill, the government sought to ensure a balance between the rights of accused to make full answer and defence while respecting and providing dignity to victims – para 23
    • Reproduced quotation from Barton, wherein Moldaver J highlighted the tragic commonality of myths, stereotypes and sexual violence against women and the serious efforts being made to remedy failings within the criminal justice system and society more broadly – para 24
  • “It is against this backdrop that this court must consider and decide upon this application brought by the applicant.” – para 25
  • Where an application is made requesting a hearing under 278.94, pursuant to s. 278.93(4), the judge decides whether to hold such a hearing. The main consideration is whether the evidence sought to be introduce is capable of being admissible under s. 276(2). This is a facial consideration with a low threshold – paras 27 & 28
    • Up to this point, there is no involvement by the complainant. If a hearing is granted, the complainant is not compellable but may appear and make submissions, and has a right to representation by counsel – para 27
  • Where a hearing is held, admissibility largely depends on whether s. 276 is engaged. Where engaged, the court must conduct the appropriate analysis. If s. 276 is not engaged, the evidence must be relevant and must have significant probative value not substantially outweighed by its prejudicial – para 29
    • “It is only at this second stage, where it is already established that a reasonable expectation of privacy exists, that the complainant is given notice and permitted to participate; the reason being that, at this point, the complainant's privacy and dignity are engaged. By this point, the court has already made a finding that she has a reasonable expectation of privacy or it is obvious from the list in the legislation.” – para 30
  • “Therefore, it would seem clear that the notice to the complainant and the involvement of the complainant only solidify when the reasonable expectation of privacy is recognized, and where a court has already concluded that the evidence sought to be adduced is capable of being admissible under subsection 276(2).” – para 31
  • “From a brief review of the legislation, it is clear that different considerations and different interests apply at the various stages. It is important to keep this in mind in determining what interests are engaged in the application before this court.” – para 32

The Process for Determination of Whether Material is a “Record”

  • “Given the interests that are at play once this legislation is engaged, it is essential that the court seriously consider whether the material in the possession and control of the accused is a record at all. This determination should not be made lightly.” – para 38
  • Before following the legislated procedure, “it must be clear that the matter falls within the scope of the legislation.” – para 33
    • “…if the material is not a record, then clearly this legislation does not apply, and issues of admissibility would be determined in the regular course.” – para 35
  • If it is a record, then the legislation applies and the proper procedure must be followed for it to be admissible – para 35
  • “Merging the considerations or the interests involved for each stage would be problematic and must be avoided. The threshold issue of whether something is a "record" and the ultimate issue of whether it is admissible are two discreet inquiries. The interests of the complainant are different at each stage.” – para 36
  • None of the legislation assists in determining the process to follow when there is a dispute about whether the material amounts to a “record” – para 39
    • Prior to this determination, there is no privacy interest engaged. As the legislation contemplates for judicial pre-screening before complainant involvement is triggered, “there would appear to be no rational basis upon which to argue that the complainant should be involved at an even earlier stage to determine whether the material meets the definition of a record.” – para 39
  • “If the documents are not "records", in other words, the complainant has no reasonable expectation of privacy in them, there is no countervailing privacy and dignity rights to be weighed against the fair trial rights of the accused. This is why there is no right for the complainant to make submissions. The right to make submissions only materializes after the reasonable expectation of privacy exists.” – para 37
  • “The more difficult question… is whether the Crown should be entitled to see the material at this very early stage in order to make submissions as to whether the material held by the accused "contains personal information for which there is a reasonable expectation of privacy". Certain overarching principles must be kept in mind.” – para 40
    • The defence is generally entitled to keep documents confidential until choosing to use them at trial – a notion rooted in the different roles played by the Crown and the defence – para 41
      • Quotation from paras 11-12 of Stinchcombe including the fruits of the investigation are not the property of the Crown, contrasted against the defence having no obligation to assist the prosecution and being entitled to assume a purely adversarial role (making the absence of a defence disclose duty justifiable) – para 41
    • However, defence does not have a right to trial by ambush – para 42, citing Darrach
    • “There are certainly instances in which the accused's right not to disclose any information will have to give way -- such as an alibi, expert evidence, or in the context of prior sexual activity evidence. However, there is no question that these instances have been determined to be necessary in those particular circumstances, and those instances are limited.” – para 43
  • Review of WM, 2019 ONSC 6535 and Mai, 2019 ONSC 6691, which both held that a Garofoli-style process with the Crown provided a summary of the materials was sufficient to permit the Crown to make their argument while protecting the fair trial rights of the accused – paras 45-49
  • AM submitted the procedure developed in WM should be adopted. He argued that procedure would properly protect his rights against self-incrimination and guard against loss of impeachment value until there is a determination of whether the complainant has a reasonable expectation of privacy in the messages – para 50
    • The Crown responded that sealing the proposed evidence denies the court an opportunity to hear informed submissions from the Crown. As the Crown is without partisan interest, they could assist the court with questions of admissibility and with the balancing that must be done – para 51
  • “Frankly, much of the argument made by the Crown would seem to be jumping several steps ahead. This court is not deciding at this point whether the evidence is admissible. This court is merely deciding whether the material is a "record" as defined and whether the accused is required to go through the process in s. 278.92-4. Just because the material does not meet the definition of a "record", does not mean that it will ultimately be admissible. There may be other reasons why this material is not admissible, one of which may be relevance. However, the only determination that the court is making at this stage is whether this material contains "personal information for which there is a reasonable expectation of privacy".” – para 52
    • “The issue here is not about "sacrificing" or "waiving" existing privacy rights, as the Crown submitted. The issue here is whether there is a reasonable expectation of privacy in the first place. If there is no reasonable expectation of privacy, then there is nothing to sacrifice or waive. The countervailing interests of privacy and dignity are not engaged at this point. The court must determine whether those interests are engaged - that is the whole purpose of this application.” – para 65 [emphasis added]
    • “Given the early stage of these proceedings, and that there is not yet a recognized reasonable expectation of privacy, the potential breach of the Applicant's right to silence and right against self-incrimination must be taken very seriously.” – para 66
  • While the Crown claimed to have no knowledge of the material AM sought to adduce, that assertion was not accurate – as suggested by the pre-trial judge, AM had provided a summary to the Crown. This summary included: all messages are between the complainant and the applicant, no one else is part of the communications, all were exchanged on WhatsApp and extracted from the applicant’s device, they span May 2017-January 2018, there is no express or implicit suggestion they should remain private, they do not contain any information that could constitute other sexual activity for the purposes of s. 276 and any messages that would be covered by s. 276 will be covered by a separate motion. During submissions, the Crown acknowledged that, on the basis of that summary, there was a very real possibility the Crown could agree with the defence that the material does not amount to a “record.” – para 55
  • “The Crown suggested that they should look at the messages first, before the court, and make a determination whether there is any reasonable expectation of privacy. This, it was suggested, may obviate the need for this application. It is the view of this court that this is not the proper approach. Ultimately it is the role of this court to determine whether a communication is captured by the s. 278.92 regime.” – paras 53-54
    • While, as the Crown suggested, the court’s review of the materials may amount to a violation fo the complainant’s privacy rights, this role is consistent with those played by courts in other contexts including O’Connor and Garofoli – para 56
  • “It is appreciated that the Crown in this case was willing to provide an undertaking not to show the communication to the complainant or describe its content to the complainant. The submission made was that the Crown does not represent the complainant and is in a similar neutral position to that of the judge. It is true that the Crown does not represent the complainant […] [and t]here is no question that the Crown is to present its case fairly to the court, setting aside any personal desire for success. However, the Crown is not the Court, and is still in an adversarial role in the process and is permitted to strive for a conviction. […] In this regard, the Crown cannot claim to be truly neutral. The Crown is not an impartial actor like the judge presiding over a trial.” – paras 58-60
  • “If the Crown receives the messages and the court then determines these messages not to be records, a real problem solidifies. The crown having read the messages will be alerted to areas of cross-examination and may wish to explore them in examination in-chief. Even if it is not explored in examination in-chief, the crown and complainant will become aware of proposed cross-examination and defence strategy.” – para 60
    • The importance of cross-examination in a trial is undeniable [citing Lyttle] and there is obvious benefit to confronting a complainant with information that is not expected. Where a witness can tailor their evidence, this undermines the truth-seeking function of the trial – courts attempt to avoid such occurrence with witness exclusion orders, etc. – para 63
    • “The fact that the complainant will know of the defence theories if this reaches a hearing under s. 278.94 demonstrates why this stage is so important and must not be lightly decided. If the materials do not engage a privacy right, then those materials need not be disclosed.” – para 63

Proposed Procedure Where Material Does Not Fall Within an Enumerated Category in s. 278.1

  • “…in circumstances in which the type of material in the hands of the accused does not fall into one of the enumerated categories [in s. 278.1], and where it is not clear whether such material is or is not a "record", the accused should be able to request direction from the court and should not have to simply turn that material over to the Crown. Disclosing these messages in advance would undermine the applicant's fair trial rights. The credibility and reliability of the complainant will be central issues at the trial and the messages have significant impeachment value.” – para 68 [emphasis added]
  • 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 to whether 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 the hearing of the application;
    • 5. The judge hearing the application will determine whether the court needs to review the material in order to assess whether a reasonable 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 to allow 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 publican ban.” – para 70

Is the Material a “Record”

  • “The Crown submitted that when dealing with this initial question of whether the material amounts to a record, the court should err on the side of caution and determine it to be a record, as just because it is a record does not mean that the accused cannot use it. According to the Crown, determining it to be a record simply means that the accused will need to satisfy the criteria set out in the legislation. This should not be the manner in which these applications are approached. Determining material to be a record carries with it great consequences. The material then becomes presumptively inadmissible. If the application reaches a hearing, the material will be disclosed to the complainant. This suggestion by the Crown goes against cases such as Hunter v. Southam and all those that follow which make it clear that the question of reasonableness is a serious inquiry to be conducted by the court. The majority of the Supreme Court of Canada in Mills (1999) noted that the broad definition of "record" was rendered constitutional by its limitation to those records in which there is a reasonable expectation of privacy. The characterization of material as a record should be carefully considered by the court.” – paras 120-121
  • “[Section 278.1] clearly does not include text communication, however, it is also clear that the list, while perhaps instructive, was not meant to be exhaustive. In these circumstances, the court must engage in an analysis to determine whether the materials in issue are those envisaged by s. 278.1. Unless the court determines that there is a reasonable expectation of privacy, this legislation does not apply and the applicant is entitled to keep material confidential until a decision is made to use them.” – para 72
  • In considering the phrase "personal information for which there is a reasonable expectation of privacy", consideration must be given to previous jurisprudence through deployment of a contextual analysis – para 72
  • While most considerations of “reasonable expectation of privacy” arise in the s. 8 context and involve different considerations and involve state intrusions, they are instructive in their guidance on the types of considerations engaged by courts when determining whether a reasonable expectation of privacy exists and reasons privacy might be heightened in certain circumstances – para 73
  • Only reasonable expectations of privacy are protected – this requires consideration of the totality of the circumstances, with particular attention to the existence of a subjective privacy expectation and its objective reasonableness – para 75
  • While the SCC reinforced in Marakah that a person does not lose control of information for s. 8 purposes simply because another person possess or can access it, “[i]t would appear that the comments made by the Supreme Court of Canada were very specific to dissemination to the state, not to other private individuals. The Court acknowledged the risk that one private citizen might tell another private citizen the information contained in the message. The court appeared to be saying that a person may well have no reasonable expectation in those circumstances, as this is a recognized risk of sharing information with others. However, the court distinguished between this risk and the risk of dissemination to the state. This is not likely to be a risk appreciated by the sender of the message, and therefore, the person may have a reasonable expectation of privacy in relation to state access to this information.”- para 78 [emphasis added]
    • “The court was clear that not every communication in electronic form would rise to the level of a reasonable expectation of privacy; in other words, text messages are not a never or always scenario when it comes to a reasonable expectation of privacy.” – para 79
    • In Reeves, “…the court [again] differentiated between sharing of information with another citizen versus sharing the information with the state. […Going] further than they did in Marakah…, the court suggests that even if the common-law spouse had told the police about this information, this would not be problematic. The problem arose when the computer was taken by the police. In other words, Mr. Reeves had no reasonable expectation of privacy in the computer as it related to his common-law spouse who shared the computer. Further, Mr. Reeves had no reasonable expectation of privacy in the common-law spouse discussing what she saw with the police. The reasonable expectation of privacy that Mr. Reeves had was in relation to the police taking and later analyzing this computer, as this is a risk Mr. Reeves would not have appreciated and should not have to bear in a free and democratic society.” – para 83 [emphasis added]
  • While general section 8 principles must be considered in determining whether PU has a reasonable expectation of privacy in the messages AM possesses, they equally dictate this must be a fact-specific, contextual inquiry – para 88
  • Consideration of the previous third-party records and s. 278 regime – and their call for a fact- and context-sensitive inquiry – are relevant and informative in interpreting the scope of s. 278.1 as it applies to s. 278.92 – para 89
    • In Mills, the SCC upheld the then-new third-party record provisions on the basis the broad definition of “record” was rendered constitutional by its limitation to those records in which there is a reasonable expectation of privacy. “It is only reasonable that this phrase carries, at least, the same central importance when dealing with materials in the possession of the accused.” – para 90
    • In Quesnelle, the Court reinforced “….a reasonable expectation of privacy is not an all or nothing concept; its analysis is contextual and based on the totality of the circumstances. …[T]he circumstances or nature of the relationship in which information was shared is not determinative and a reasonable expectation of privacy is not limited to trust-like, confidential or therapeutic relationships. Further, a person may divulge information to an individual with the expectation that it be used only for a specific purpose.” – para 92
  • Review of other cases that have considered what material in the possession of an accused amounts to a record after Bill C-51 – paras 95-,
    • In Mai, Justice Roberts concluded the totality of the circumstances must be considered in determining whether a reasonable expectation privacy exists, suggesting a division of the relevant circumstances into two broad categories – the nature of the information contained in the record, and the context in which the record was created and obtained by the accused. The content of the record will be most important in protecting the privacy and quality rights of the complainant, and will often be determinative. Consideration of the context of the record will only be necessary where where the record does notcontain information falling within the broad definition of sexual activity, does not fall within an enumerated category in s. 278.1, and does not fall within the further included category of records containing personal information protected from disclosure by provincial or federal legislation. Contrary to Duarte, Roberts J contended this contextual consideration would necessarily involve a “risk analysis,” which has an important role to play outside the s. 8 context – para 100 

Determining Whether the Material in the Possession of the Accused is a “Record”

  • “The determination as to whether an individual has a reasonable expectation of privacy is necessarily a fact-specific inquiry, involving a consideration of the totality of the circumstances.” – para 101
  • “It is the view of this court that the following considerations should apply when determining whether material in the possession or control of the accused falls into the definition of "record" as set out in s. 278.1:
    • The nature and type of material -- i.e.: text message, email, photograph, social media post;
    • A consideration of the parties privy to the material or expected to be privy to the material, i.e. parties to the communication in text messages;
    • The nature of the relationship between the parties at the time of the communication and at the time of the application;
    • The manner and time that the material came into the possession of the accused, including whether it was voluntarily provided or surreptitiously gained;
    • The time of the creation of the material;
    • The time period covered by the material;
    • The knowledge of the parties sharing the material at the time; in other words, a consideration of whether the parties knew the material was being shared and who it was being shared with;
    • The purpose for which the material was provided to the accused;
    • The content of the material, including:
      • Whether the content is of the type expected to be found in the records enumerated in s. 278.1;
      • Whether there is any indication in the material that the information is meant to remain private or with whom it is meant to be shared;
      • Whether the material includes any information that could constitute other "sexual activity" for the purposes of s. 276 of the Criminal Code.” – para 102
    • “In an application to determine whether material amounts to a "record" pursuant to s. 278.1, the applicant must provide the information noted above in order to allow the Crown to provide an informed response to the application.” – para 102

Did PU Have a Reasonable Expectation of Privacy in the WhatsApp Messages?

  • In the totality of the circumstances, while the complainant may have subjectively preferred that her messages remain private, her expectation was not objectively reasonable – para 103
  • At the time they were sent and received, the messages were between the complainant and the accused while they were married couple that, at times, lived in different countries. – para 104-106
  • “Their relationship now has dramatically changed. As of January 2018, the complainant made a statement to the police alleging that the applicant assaulted, sexually assaulted and threatened her beginning in September 2017. The applicant was charged with a number of criminal offences and is moving toward a trial in this matter. The relationship is now an adversarial one.” – para 106
  • The messages were obtained from AM’s personal device, as he had saved the messages. AM and PU appeared to know they were sharing information with each other – they were not obtained surreptitiously but were exchanged voluntarily – paras 107 & 109
  • “The complainant in the case at bar chose, of her own free will, to disclose the information contained in the messages to the applicant. The complainant knew who she was conversing with and that she was creating a permanent record that could easily be saved and disseminated to others.” – para 109, relying on WM at paras 45-47 (including that, while the risk of further dissemination is not determinative, the risk of creating a permanent record the applicant could save is quite different than the risk of state interception noted in Marakah)
    • “The risk that this information could be shared with another person was obvious, as it is to anyone who communicates with a person in such a manner.” – para 109
  • The messages appear to be simple conversation between two people about their daily lives. There was no suggestion that the complainant was sending the applicant the information for a limited purpose or they were tobe kept private. Their contents are not of the type expected to be found in records enumerated within s. 278.1. They are innocuous, not highly personal or intimate – paras 110-112
  • “Section 8 of the Charter does not apply directly in this case. This is not a situation where messages were searched or seized by a state power, rather the applicant has retained them since the complainant sent them to him. Thus, while the case law on reasonable expectation of privacy in the context of s. 8 is instructive, as the court found in M., different considerations shape and impact the analysis when the applicant is a ‘private citizen defending himself against criminal charges’” – para 114
  • “While "records" in the hands of a third party and those in the hands of the accused are both now captured by this legislation, there is a difference between the two. The types of items listed in s. 278.1 appear to either be things that would be expected to reside in the hands of third parties, such as therapeutic or counselling records, or things that are only to be seen by the person creating it, such as a diary. […] There has, historically, been a goal to prohibit fishing expeditions and misusing information that was created or shared for specific and limited, often professional, purposes. […] However, records in the hands of the accused are different. The concern is not about the accused possessing the information, but rather the use of that information. Surely, the reasonable expectation of privacy analysis must be assessed differently, and not in the same manner as one would assess a reasonable expectation of privacy with respect to state intrusion or with respect to records held by third parties. [...] In the case of information already in the hands of the accused, there is no concern about a fishing expedition, as the information is already known. Any concern about misuse of the information will be governed by the already existing rules of evidence.” – paras 115-116
  • “It is the view of this court that the labelling of material in the hands of the accused as a "record" must be undertaken very cautiously so as to only capture those things that truly are included in the list contained in s. 278.1, such as therapeutic records or a diary in the hands of the accused, or those over which a clear reasonable expectation of privacy can be demonstrated. It is the view of this court that the material captured by this second category should not be overly broad.” – para 116
  • “Section 7 of the Charter is engaged for the accused. Section 7 is a fundamental tenant of our criminal justice system. The complainant and the applicant are now in an adversarial relationship. The applicant is accused of very serious crimes. While the complainant may have believed at the time that the communication was simply between her and the applicant, it is not now reasonable for her to expect that the applicant would keep private information that could advance his defence.” – para 117
  • “ In enacting this section of the Criminal Code, Parliament could not have intended to attribute such an expansive definition to that of "records", such that an accused person's section 7 rights would be infringed. If these text messages fall into the category of personal information over which there is a reasonable expectation of privacy, then anything shared between the two parties could likewise fall into this category, such as a handwritten note, a birthday card, a photograph, a voice mail message. This would lead to an absurd result which would, in allegations of domestic violence, require the applicant to seek permission of the court to defend themselves with anything, if it was recorded in some way.” – para 117 [emphasis added]
    • “Should the applicant decide to testify, the information in the messages between the complainant and the applicant would likely be discussed as it may be relevant to the characterization of the relationship. There is no general rule prohibiting the applicant from testifying about the content of the messages, subject to factors such as relevance and, of course, the rules relating to sexual activity. The messages, therefore, enhance the truth-seeking function of the courts, as rather than rely on the memory of the applicant for exact words used, these messages provide a record on which the court can rely in determining the credibility and reliability of the complainant, which is apparently a central issue in this case.” – para 118
    • “Further, the complainant would likely be at liberty to use such text messages from the accused to support her narrative. If the complainant would be able to use them, so should the accused.” – para 119
  • “In this case, there was no evidence that the complainant even has a subjective expectation of privacy in the WhatsApp messages. … However, even assuming that she does have such an expectation, it cannot be reasonable in these circumstances for the reasons stated above.” – para 122
    • The applicant is therefore not required to bring an application under s. 278.93 before using the messages at trial – para 123
    • “However, this does not mean the materials are necessarily relevant to an issue at trial. This court is not ruling on the actual admissibility or the use of the communications at trial. It is still open to the Crown to object, and the court to intervene, in the event that the proposed use of these communications at trial engages s. 276, where the probative value of the evidence is substantially outweighed by its prejudicial effect, or where other rules of evidence apply, such as determinations of relevance. This will be determined as the trial unfolds.” – para 124

R v TB (ONSC) 

[March 20, 2020] Charter s.7 - Abuse of Process - s.24(1) Remedy for Breach of Confidential Informer Privilege - 2020 ONSC 1706 [Mr. Justice. F.B. Fitzpatrick]

AUTHOR’S NOTE: This case provides a thorough discussion of an application for a stay of proceedings based on the police breaching the confidential informer privilege of an accused.  As is to be expected, the authorities disputed the breach suggesting they have never granted the accused any formal status.  Such a grant is unnecessary. What is important is the objective circumstances of the communications between the authorities and the alleged informant and whether they reasonably lead to the impression of confidentiality.  Implicit promises are enough. 

As for remedies, there may be no way to put this particular genie back in the bottle. Once disclosed, there is no real effective way to control what kinds of danger this information can place the former informant into.  Here, the police disclosed the informer's communications to another suspect in a serious crime investigation. The results were predictably violent.  The intentional nature of the police actions, which were astonishingly blatant, was roundly criticised by the court and led to a stay of proceedings. 


[3] The essential ruling arising from the latest of my decisions, delivered on November 4, 2019, is that T.B. enjoyed a privilege as a confidential informant after February 18, 2016. In that regard, I was simply affirming a ruling made by one of my colleagues on March 6, 2019....

[4] ....In this matter, if the evidence of T.B. and his/her sibling about various conspiracies of state actors to do him/her harm on some occasions were discounted, which it was, I was left with relatively straightforward evidence about the critical issues and particular events necessary to resolve this application. I address the deficiencies I see in T.B. and his/her sibling’s evidence about what I see as collateral matters later in this judgment.

[8] T.B. argues that his/her s. 7 right to security of the person has been violated by actions of the police and the Crown. He/she points to a number of actions by both state agencies in disclosing the contents of an interview of which he/she was a party on February 18, 2016. He/she alleges that these actions constitute an abuse of process for which he/she should be granted a stay of proceedings.

[11] At the outset, I observe that a lot of the focus on non-essential issues in the application arose from T.B.’s opinions and beliefs about various state actors and what he/she thought they were doing to him/her. In his/her testimony, and that of his/her sibling, various veiled accusations that could be characterized as “conspiracy theories” were advanced. The Crown was obliged to respond. I find most of this evidence irrelevant to the central issue. I do not believe a great deal of what T.B. said about his/her interactions with state actors. I agree with the submission of the Crown that he/she is a fraudster.

[12] However, I find that this general lack of credibility on the part of T.B. is not critical to the essential question that is at issue for his/her case on this application. This is because what I see as the essential interactions in this matter were all captured electronically. Counsel and I referred to these digital captures as “tapes, or matters being videotaped.” I know, we all know, that this is a reference from the past, but it has stuck around. All the media we viewed was digital.

[13] Unfortunately, one essential interaction was recorded with video only. There was no audio in the video of T.B. being beaten while he/she was in custody. In that regard, I specifically assess the testimony of T.B. and others about what happened during that event. I do find T.B. credible with respect to that interaction, despite having discounted a great deal of other things he/she said about other events. I judge his/her testimony of those collateral events as incredible.

The Law of the Applicable Remedy

[15] I address the evidence and my findings from each of these interactions in turn. At the outset, it is important to set out what I view as the overarching legal test which will be applied in determining whether or not to grant the relief requested. This framework was described by the Supreme Court of Canada in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309.

[17] A stay of proceedings will be warranted only in the clearest of cases. For T.B. to successfully obtain a stay of proceeding, he/she must prove on a balance of probabilities all parts of a three-part test. The first part requires proof that the state has engaged in conduct that is offensive to societal notions of fair play and decency and that proceeding with a trial would be harmful to the integrity of the justice system. The second part inquires if an alternate remedy short of a stay of proceedings would adequately dissociate the justice system from the impugned state conduct. Finally, if there is uncertainty over whether a stay is warranted, the court undertakes a balancing exercise. The court considers the nature and seriousness of the impugned conduct, whether the conduct is isolated or systemic, the charges at issue, the circumstances of the accused and the interest of society having the charges disposed of on the merits.

[18] In addition, there was no dispute between the parties about the legal principles or concepts that apply to persons who are found to be confidential informants. Informer privilege is absolute. Informer privilege is so sacrosanct that even the right to make full answer and defence, to which is tied the right to disclosure, does not permit an exception to the privilege. There is a duty on various state actors, Crown, police, counsel and the courts to keep an informer’s identify confidential. The Crown and police cannot disclose an informer’s identity without the informant’s consent. Also, it is recognized that it is virtually impossible to restore the privilege once it is broken. It is one “box” in the criminal law world that resoundingly affirms the parable of Pandora’s box, with the exception that the tiny voice of hope is never the last item which gets released from this particular type of Pandora’s box. The last item released from a box of broken privilege is usually “a good smackdown.”

Pertinent Facts

The February 18, 2016 Interview

[19] It is clear from the evidence that in February 2016, T.B. was the only suspect in a series of serious crimes. The police knew multiple persons were involved in these crimes because of the evidence of the victims. The police established a task force comprised of four officers to investigate. An operational plan was devised. T.B. was already wanted on outstanding charges, so police had a reason to arrest him/her. The plan provided that upon his/her arrest, a tracking device would be placed on T.B.’s car. Further, in the course of processing T.B. on the outstanding charges, he/she would be interviewed and introduced to an undercover officer. All of these actions were designed to lead to further information and presumably an arrest of T.B. and others in respect of the serious matter.

[20] Initially, the police did not intend or expect the Interview would yield any substantive information about the matter for which T.B. was a suspect. The Interview was to be directed only at the relatively lesser offences with which T.B. was charged when arrested on February 18, 2016. The operational plan did not go according to plan. When uniformed officers arrested T.B., he/she did not go “quietly.” He/she backed his/her car into the arresting officers’ cruiser. The damage this caused made it impracticable for the police to place the tracker on his car.

[23] As noted in my decision of November 4, 2019, another Superior Court Justice determined that as a result of the Interview, T.B. had the status of a confidential informant after February 18, 2016. To be clear, the officers investigating T.B. for the charges he/she now seeks stayed did not view T.B. as a confidential informant after February 18, 2016. The Crowns prosecuting T.B., both as the result of information they received from the police and, for one Crown, who actually reviewed a full transcript of the Interview, were of the opinion that T.B. was not a confidential informant at any time material to this application. This certainly coloured the manner in which these state actors dealt with T.B. It explains their behaviour. Whether or not it excuses their behaviour is another matter.

[24] The Crown argues that T.B. was not enough of a confidential informant to benefit from the privileges accorded to such persons by the established authorities. As noted in my November 4, 2019 ruling, I agree with my colleague that T.B. was a confidential informant following February 18, 2016. The record of the Interview clearly supports this view. The interviewing officer went well beyond questioning T.B. about the events of his/her arrest on February 18, 2016. The officer held himself/herself out as an intelligence officer with a specialty in organized crime in a particular community, a community of which T.B. was a member. T.B. was tricked into believing the camera was off. T.B. was told by the officer that the Interview was not being recorded when, in fact, it was. [Emphasis added by Author] [25] As stated in my decision of November 4, 2019, the deception tactic is a key factor for my conclusion that T.B. expected his/her disclosures to be kept confidential. I agree with the Crown’s submission that the interviewing officer made no explicit promise of confidentiality during the Interview. However, after viewing the Interview in its entirety, it is clear to me that the interviewing officer did make several implicit promises to T.B. There is ample authority for the proposition that implicit promises can create a confidential informant relationship (see for example Bisaillon v. Keable 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, at p. 105). [Emphasis added by Author] [26] T.B. was shown, but not given, the interviewing officer’s card in a portion of the Interview where the officer suggested he/she had precedence over other officers. In my view, implicit in this discussion was an offer to create a special relationship, a confidential one, with T.B. in return for information. The interviewing officer offered judicial consideration to T.B. in respect of the charges he/she was facing in return for information. The interviewing officer offered to massage the bail application in return for information. [Emphasis added by Author] [27] The officer spoke in terms of creating a “business relationship” with T.B. This is plain and obvious language. Police officers do not do business deals in the ordinary commercial sense of the word with people they have forced into an interview room following an arrest. The only “business deal” that could conceivably be understood to arise from use of this type of language is a confidential informer relationship.

[30] The interviewing officer deployed a trick. The interviewing officer said the recording devices had been turned off. The interviewing officer moved T.B. to another room. The interviewing officer then did not turn off the recording device in the new room. I note that the transcript of the Interview reports the officer saying that the recording device was “on.” However, in the recorded Interview, the officer clearly says, “off.” This was a curious typo in the transcript. Nevertheless, counsel agreed that the transcript was incorrect, and that T.B. was tricked into believing that he/she was not being recorded when in fact he/she was.

[32] Once T.B. thought the cameras were off, the Interview continued for about three hours. T.B. obliged the interviewing officer’s express request for information about other crimes and criminals. He/she gave detailed information about other crimes and their perpetrators. He/she expressly implicated other persons in respect of several different but very serious crimes. He/she acted like an informant, a “rat,” during the Interview.

[33] Counsel agree that T.B. was not cautioned nor read his/her Charter rights. He/she was not informed of his/her right to remain silent about the serious charges of which he/she was suspected at the commencement of the Interview.

[34] I am of the view that use of the “camera on/camera off” trick is a permissible police tactic. In the normal course, society expects police not to lie. Alternatively, I think society also sees it necessary for the police to sometimes do dishonourable things, lie for example, in order to achieve an end in protecting society. However, I also expect that society would be shocked if deployment of this dishonourable tactic was allowed without some limitations on what might be done with the information gained from it.

[36].... Once the officer started down a particular path and began making certain representations to T.B., he/she and other police dealing with the contents of the Interview simply could not go back to the beginning or hit “reset” or pretend that certain things had not happened as they did. Ultimately, I draw a conclusion from listening to the police officers who testified in this case that they either ignored or were willfully blind to the realities or limits imposed by how the Interview was conducted. I say this for several reasons.

[38].... A change in one aspect of a plan should cause reconsideration of all its aspects. This is especially so when the suspect requested that the interview not be recorded, and the interviewing officer never intended to comply with that request.

[40] I am convinced on a balance of probabilities that the interviewing officer did not specifically debrief the task force officers about the Interview. This is because I accept the evidence of the other officers that once the interviewing officer completed the Interview, he/she was required to be elsewhere in the police station. Right after he/she completed the Interview, he/she was required to attend to the undercover officers who did the “cell shot” with T.B. This was part of the original plan and was unaffected by T.B. smashing his/her car into that of the arresting officers.

[41] Also, regarding a debrief, according to the evidence of the task force officers, none of them had seen it necessary to review the entire tape of the Interview before legal advice was sought. I see this action on the part of the police as more probably occurring in a circumstance where they had not been alerted to the actual contents of the Interview. As far as the task force officers were concerned, nothing significant had occurred during the Interview at least as far as T.B. thinking or being put in a situation where he/she could reasonably think, he/she was a confidential informant. This explains the task force officers’ decision not to watch the Interview in its entirety before they obtained legal advice about it. It does not however excuse or minimize the importance of that decision.

[42] A meeting was held with a senior Crown and two of the task forces officers five days after the Interview had been completed. Neither the officers nor the Crown was aware of the express contents of the Interview. The senior Crown provided an email, entered into the evidence, which I find represented a legal opinion on what was a limited issue as clearly set out in the opinion. The issue on which the opinion was given was whether it was acceptable for the police to deploy a deception tactic during the Interview, a tactic which I have identified as the “camera on/camera off” trick. The opinion of the senior Crown was that it was acceptable to deploy the trick. However, the opinion was qualified. It stated “where ‘going off the record’ has resulted in problems is when accused parties have not been properly cautioned or given their rights to counsel, or there are other promises made (like confidentiality)” (emphasis added).

[45] The task force officers did not know about the promises made when they sought the opinion because they had not then watched the tape or reviewed the transcript of the entire Interview. In my view, once they saw the qualifications contained in the opinion and the identification of a problem about possible confidentiality, it was incumbent on them to watch the whole Interview to ensure no such promises were made. None of them actually watched the entire tape. Ever. However, they did watch enough of it to discern that T.B. had “ratted out” his/her colleague, a colleague whom I refer to Mr./Ms. X. The task force officers watched enough of the Interview to determine that they might try to use the information which T.B. disclosed in a subsequent interview of Mr./Ms. X. In fact, they specifically used the fact that T.B. had “ratted out” Mr./Ms. X. in an eventual interview with Mr./Ms. X. This is the problem for the Crown on this application.

[46] Also, the Crown’s opinion of February 23, 2016, gave specific direction to the police about what full and frank disclosure of the deception tactic might be given to any judicial officer deciding to issue warrants based on information obtained from the Interview. In their testimony before me, the task force officers frankly admitted that they did not follow this advice. This is also a problem for the Crown on this application.

[47].... When police deliberately deceive a citizen, a suspect, a non-suspect, an accused or otherwise, there are consequences that our society would want to see flowing from the fruits of that deception.

The Police Interview of Mr./Ms. X on May 12, 2016

[52].... Mr./Ms. X also became a suspect for a time in the serious crimes of which T.B. was ultimately charged.

[54] The interview with Mr./Ms. X. was fairly wide-ranging. It was screened in its entirety before this court during the application. It was conducted by two task force officers. The language used is informal. It is evident that the officers made it clear that Mr./Ms. X. was a suspect of a very serious crime. They informed Mr./Ms. X. that T.B. had placed him/her at the scene of those crimes. This is not done casually by the officers.

[55] Mr./Ms. X. clearly expresses disbelief that T.B. would inform on him/her. Shortly after this exchange the officers say, “T.B. said …,” using Mr./Ms. X’s nickname, “… that [he/she] is the [person] who planned the [serious crimes].” The officers then tell Mr./Ms. X. that T.B. expressly used his/her government name and they say the name aloud. At that point, Mr./Ms. X. asks if this was done on video. The police say it was and that they have the video. Mr./Ms. X. asks to see it. The police oblige.

[56] Before they show Mr./Ms. X. the tape, they taunt him/her (my characterization) by asking whether it would “piss [him/her] off” to be shown a video of himself/herself being “ratted out” by T.B. Mr./Ms. X. agrees that it would piss him/her off. Later, he/she is asked by the officers how he/she feels about being “ratted out” (my characterization). Mr./Ms. X. responds in street language that I understand to mean that he/she wanted to immediately avenge himself/herself on T.B. One of the interviewing officers then says that what T.B. has done is “nasty.” I understand this language to mean “really, really bad” and not “nasty” in the way you would say to a toddler that what it was doing was improper.

[57] Ultimately, the portions of the Interview where T.B. “rats out” Mr./Ms. X. are shown to Mr./Ms. X. In fact, after further back and forth with the interviewing officers, Mr./Ms. X. asks to watch the tape again. The police oblige. Throughout, Mr./Ms. X. denies that he/she was involved in the matters in which T.B. had implicated him/her.

[58] The officers tell Mr./Ms. X. that they are going to show the Interview to “five, six, seven of these people” who have been implicated by T.B. Closer to the end of the interview, Mr./Ms. X. says that he/she is going to talk to T.B. about what T.B. is saying about him/her and others. Shortly after this, the interview ends. Mr./Ms. X. is released unconditionally.

[59] Seeing how the interview with Mr./Ms. X unfolded, I find that the interviewing officers were very much in control of the interview process and its contents. They had a laptop computer at hand and had queued up the tape to the sections involving Mr./Ms. X. Given the length of the Interview, it would have taken some degree of preparation and forethought to have the right segments so readily available once Mr./Ms. X.’s interview began. Yet the evidence of the four task force officers was to the effect that they did not see the interview with Mr./Ms. X as important at all. I do not accept this evidence. I find that the officers’ control of the interview process and contents evidences that their decision to show the Interview to Mr./Ms. X. was an important tactical one and that they made it beforehand.

[61] Having watched the interview with Mr./Ms. X., I find that the police consciously prepared to show him/her portions of the Interview. They did not disclose to Mr./Ms. X. that T.B. had asked to have the tape turned off. Seeing oneself being “ratted out” is bad enough for anyone, let alone a person with a serious criminal record. However, it seems to me that the police exacerbated the effect of T.B.’s actions by failing to tell Mr./Ms. X. that T.B. had thought that he/she was off camera. I find it was outrageous and unfair of the police to have shown Mr./Ms. X. the Interview, particularly when they seemed to have had no desire or basis to charge him/her, short of him/her confessing to the crimes on the spot.

[62] In the circumstances of the allegations against T.B., I find the possibility of Mr./Ms. X. confessing on the spot an incredible or seriously unreasonable prospect. It was doubly deceptive for the police not to at least have told Mr./Ms. X that T.B. thought he/she was not being recorded. I think the police had no belief whatsoever that Mr./Ms. X. would confess.

[63] I find that the interview with Mr./Ms. X. was a set up by the police to ensure that what T.B. had told them about other persons alleged to have committed criminal acts was communicated to the criminal element at large. I say this because it simply does not make sense for the police to show Mr./Ms. X. the Interview and then not charge him/her with the crimes at issue, unless they had no intention to charge him/her in the first place. The precarious position of an informant is well known. A couple of times during the presentation of evidence the phrase “snitches get stiches” was put to a number of the witnesses. Several of them acknowledged they had heard the phrase before. In my view, I need no further proof of the meaning of this axiom.

[64] The jurisprudence recognizes the sacrosanct position of confidential informants. The jurisprudence recognizes the very real possibility that harm will come to confidential informants if their identity is revealed (see R. v. A.B., 2015 ONSC 5541, [2015] O.J. No. 4597, at para. 2). “Rats,” informants, are reviled by the criminal community. It is trite to say that informing is practically a death sentence to a criminal career if that fact becomes known in the criminal community. Retribution is exacted in various degrees and can include death. Prior authority establishes that courts, the police, the crowns, and defence counsel are duty-bound to protect the identities of confidential informants. In my view, the interview with Mr./Ms. X. and the showing to him/her of the Interview represented a deliberate and blatant breach of T.B.’s privilege by the police. It is conduct which would not be condoned by society at large. It represents an abuse of process.

The January 10, 2018 Assault on T.B. at an Ontario Provincial Jail.

[65] There was no issue between the parties that T.B. was assaulted at an Ontario Provincial Jail on January 10, 2018. There was no issue that T.B. suffered serious personal injuries mostly to his/her face during the assault. The assault occurred while T.B. was watching T.V. in the common area of a range that was being video-surveilled. The footage of the assault was screened during the application. There was no audio. However, the images were quite clear.

[66] Three other inmates stalk, circle and then attack T.B. The assault appears premeditated. The attackers slash T.B.’s face with razor-like weapons. They do not linger. They attack and then quickly retreat to a toilet area. They attempt to flush away their weapons before prison guards rush onto the range.

[67] T.B. testified that the assailants called him/her a “rat” and a “rat goof” during the assault. T.B. testified that a “goof” in jailhouse parlance is the equivalent of being called a pedophile or a rapist: the lowest of the low on the prison pecking order. T.B. also testified that one of the assailants said, “We told you, you were going to get it.” There was no other evidence about what was said during the assault.

Application of the Law to the Facts Here

[82] I find that the showing of the Interview to Mr./Ms. X. by police was a serious breach both of T.B.’s confidential informer privilege and his right to security of the person under s. 7 of the Charter. I find it represented an abuse of process. It is a breach that calls for a remedy. I find that this is one of those clearest of cases noted in Babos.

[83] There was no direct evidence linking Mr./Ms. X. to the assailants. I nevertheless find, on the balance of probabilities, that T.B. suffered an assault in an Ontario correctional institution because of information that was available to other inmates. That information came from the revelations made to Mr./Ms. X while he/she was in police custody on May 12, 2016 that T.B. was a confidential informant. The circumstances of the attack, the connections between T.B. and Mr./Ms. X., and my findings that the police showed the Interview to Mr./Ms. X. to broadcast T.B.’s status to the criminal element: these are the parts of circumstantial evidence that I use to make this causal connection and finding of fact. This finding is made solely for the purpose of crafting an appropriate remedy for the above breaches in this application alone.

[84] Despite my findings concerning T.B.’s credibility in regard to a number of events referred to during his/her evidence on this application, I find his/her evidence about what was said during the attack to be credible. In particular, I find that his/her assailants called him/her a “rat” and a “goof.” From the evidence, T.B. clearly is a “rat.” I do not have sufficient evidence to find that he/she is also a “goof,” that term being described by T.B. as including “sex offender.” I make no findings in that regard. However, I accept his/her evidence and I find that he/she was called “rat” and “rat goof” by his/her assailants during the assault. I rely on the evidence of the guards who broke up the fight to corroborate that insults were exchanged between T.B. and the assailants. These insults included the word “goof.” I am prepared to accept this is an insult with particular meaning. It is a word reserved for the worst of the worst in the criminal world. I find that it was directed at T.B. during the assault. The use of these words and the deliberate nature of the attack as evidenced by the surveillance video ground my finding that T.B.’s status was compromised by the showing of the Interview to Mr./Ms. X.

[85] In its submissions, the Crown referred to other times where T.B. had sought to “rat out” other persons. These references were vague. They were not sufficient for me to draw any conclusions on a balance of probabilities that would lead me away from the conclusion that it was because Mr./Ms. X. was shown the Interview that T.B. was then targeted in an Ontario institution. What was not vague from the evidence was the contents of the Interview and its clear and careful disclosure to Mr./Ms. X..

[86] I find that the police had no lawful reason to show Mr./Ms. X. the Interview other than to make T.B.’s status known to the criminal underworld. I simply do not believe that the lead investigator was not briefed of the fact that Mr./Ms. X. was shown the Interview. This is because of how readily it was available, how quickly it was obtained by the interviewing officers and how they were able to set up the introduction of the Interview to Mr./Ms. X. The questioning of Mr./Ms. X. became more like a “briefing” to him/her, as the interviewing officers slowly introduced the idea that T.B. had “ratted out” Mr./Ms. X. The concept was introduced gradually and deliberately. The Interview was then shown. I cannot see this as anything but preplanned and deliberate.

[87] Also, because of the problems that the police knew they had with the “camera on/camera off” nature of the Interview, I do not accept their evidence that their interview of Mr./Ms. X. was unimportant. The officers sought legal advice. This of itself indicates that the Interview was a special circumstance. This special circumstance should have led to caution in its use. From the evidence, I find the investigating officers did know what they had in the Interview. They had T.B. being a “rat.” They had T.B. being a “rat” only after he/she thought he/she was not being recorded and while he/she was being offered the opportunity to “do business” with the interviewing officer, an officer who held himself/herself out to be “above” the officers who had arrested T.B. The interviewing officer both convinced and encouraged T.B. to believe that what he/she was saying was confidential. Watching the totality of the Interview leads me to this conclusion.

[88] I find that the task force officers knew that they had video evidence of T.B. that made him/her vulnerable. I find it inconceivable that they could testify that showing it to a convicted criminal like Mr./Ms. X. would be benign. I accept that in the criminal world and following into the ‘real world’ “snitches get stiches.” In other words, when the identity of a confidential informant is deliberately leaked to a person with connections to the criminal world, it is well within the realm of possibility that the informant will be subjected to attack leading to severe personal injury.

[91] A senior Crown was asked to opine on the circumstances of the Interview before the Interview was shown to Mr./Ms. X. I find no issue rising to the level of a s. 7 breach in that Crown’s actions because the Crown was reasonably relying on the police to advise of the background. The police did not alert that Crown to the contents of the Interview. Accordingly, the Crown cannot bear responsibility or blame for the remedy at issue.

[92] I find that prejudice to the integrity of the justice system will be manifested, perpetuated or aggravated through the outcome of a trial in this matter. I say this because T.B. has now been in custody for almost four years. During that time, he/she was subjected to a serious attack designed as retribution because of what police did with information he thought would be kept confidential. T.B. testified that he/she did what he/she could to protect himself/herself while in custody from accusations that he/she was a “rat.” However, he/she was a “rat,” and he/she knew it as soon as he/she began to inform the police in February 2016. He/she also knew as of May 2016 that the police had lied to him/her and that they had him/her on tape “ratting out” a range of other serious criminals.

[93].... Objectively, how T.B. acted during the Interview created a privilege for him. Occasionally, non-legally trained, (and maybe even legally trained) persons, do not recognize their status in the eyes of the law. Their lack of legal awareness does not diminish their status unless they expressly and with full knowledge of their status, waive their privilege. Despite the various directions in which T.B.’s instructions to his/her counsel took the proceedings, he/she never consented to the Interview being shown to a fellow criminal. I find that at no material time did T.B. waive his/her privilege. [Emphasis added by Author] [95] I find that society at large would say that this case goes into the category of something the average person would not tolerate or see as fair, just, or appropriate police conduct. It is analogous to a hockey game where a puck-carrier has his or her head down and a defender delivers a shoulder-to-head check at centre-ice, at full speed in a no-contact game. It just is not done, and everybody who plays the game knows it. This is a clearest of clearest kind of case. In my view, the police conduct at issue on this application would shock the conscience of the community. This makes this case a clearest of clearest kind of case.

[97] I do not see any way of ‘putting the genie back in the bottle’ short of granting what the applicant seeks. Clearly members of the criminal underworld believe T.B. is a “rat.” What has happened to T.B. has gone beyond mere insults or innuendo. Some criminals have tried and succeeded to harm him/her. My writing a judgement is not going to fix what criminals think of T.B., now or in the future. He/she is branded a “rat.” That brand is dangerous to his/her personal safety when it comes to other criminals. T.B. is in this position because of police action. A serious remedy for a serious breach is required.

[99] I find the conduct related to the showing of the Interview to Mr./Ms. X so egregious that allowing the continuation of the prosecutions of the various charges, referred to in this application, would be offensive to the conscience of Canadian society. Short of a stay of proceedings, there is no way to erase the stain T.B. placed upon himself/herself or the jeopardy he/she put himself/herself in with the encouragement of the police, once his/her actions as an informant were knowingly disclosed. It seems to me that in fairness, the police could have simply warned T.B. during the Interview that whatever he/she said could not be kept confidential. Again, while this is easy to say with the benefit of hindsight, it just seems like common sense for the interviewing officer to have done it at the time, except if his/her only intention was to try to develop more leads. The Interview was used for a great deal more than that.

[101] This was a rare case where a confidential informant’s identity was disclosed advertently. Crowns and police routinely resist disclosing any information that might remotely identify a confidential informant during a criminal proceeding. Yet in this case, the police deliberately, blatantly, and calculatingly disclosed T.B.’s identity and the fact that he/she had “ratted out” other criminals to another person with a serious criminal record: Mr./Ms. X.

[103] During submissions, I was directed to other defence applications regarding this evidence. Those applications are awaiting the result of this application. Those applications are moot as the result of the stay of proceedings that is being granted on this application.

[104] In deciding to grant a stay, I have considered the balance between society’s interests in having these matters tried on their merits against what has happened to T.B.. It was a close call. However, it seems to me that the police conduct in this matter was so egregious that there simply is no way in good conscience that the proceedings against T.B. can be allowed to continue. This is the only way going forward that the justice system can disassociate itself from this conduct.

[106] My ruling does not mean T.B. now has some kind of special immunity in the future. The remedy will relate only to the charges before the Court. But it will relate to all charges referred to on this application. In my view, it is a fulsome, complete and generous remedy in light of everything that has occurred in this matter and in the spirit of the caselaw as articulated in Babos.

[107] In my view, given the protections afforded by our law to confidential informants, there can be no other remedy for the State’s breach of T.B.’s privilege, violation of his/her s. 7 Charter rights, and abuse of process other than to order a stay of all prosecutions currently in place against T.B. and referred to in the evidence before me.

[108] The application is therefore granted.

R v Ali (ONSC)

[March 27, 2020] – Manslaughter through Provision of Fentanyl - Causation and Circumstantial Evidence – 2020 ONSC 1719 [Boswell J.]

AUTHOR’S NOTE: Its difficult to know what's going on exactly with fentanyl crisis while the coronavirus lockdown is happening, but there was a spat of cases in recent years where the Crown tried to establish liability for homicide amongst drug dealers of fentanyl.  In this case, such an attempt is foiled by causation difficulties. The case highlights the sorts of arguments the defence can use to break the chain of causation where the user is an addict. 

Pertinent Facts

[1] Shawn Kelly was 23 years old and worked in construction. He lived with his parents and younger sister in Innisfil. On April 10, 2017 he failed to get out of bed for work. His mother knocked on his door but he did not respond. She gave him another ten minutes, then knocked again and opened his door. Shawn was sitting on his bed, slumped over. He had died in the night from an opioid overdose.

[2] The Crown asserts that Mr. Kelly bought .3 grams of a mix of heroin and furanyl fentanyl from his friend, Ryan Walker, in the early evening of April 9, 2017. That much is not really in dispute. The Crown also asserts, however, that Mr. Walker was just a middleman. The drugs, they say, were supplied by Tahir Ali. And it was the ingestion of these drugs, they claim, that caused Mr. Walker’s death.

[3] It did not take officers of the South Simcoe Police Service (the “SSPS”) long to connect Mr. Kelly to Mr. Walker. Text messages contained on Mr. Kelly’s cell phone provided clear evidence that he had arranged to buy drugs on April 9, 2017 from Mr. Walker.

[4] Mr. Walker was questioned by the police on April 13, 2017 and he told them that the drugs sold to Mr. Kelly had come from someone named “Sasha”. The police later determined that “Sasha” was the accused, Mr. Ali. They began an investigation into Mr. Ali.

[5] On April 28, 2017 the South Simcoe Police conducted a surveillance operation on Mr. Ali, with the assistance of officers from the Barrie Police Service. A take-down was called at 8:37 p.m. and Mr. Ali was arrested without incident. His car – a black, Toyota Prius – was seized and subsequently searched by the police. Officers found quantities of a number of illicit drugs in his car, including marijuana, cocaine, and a mix of heroin and furanyl fentanyl.

[6] Mr. Ali is charged with possessing a mixture of heroin and furanyl fentanyl for the purpose of trafficking on both April 9, 2017 and April 28, 2017. He is further charged with actually trafficking in it on both those dates. Finally, he is charged with manslaughter in the death of Shawn Kelly for having supplied the drugs that killed him.

[8] To establish that Mr. Ali trafficked in heroin and furanyl fentanyl, the Crown must prove, to the reasonable doubt standard, that he intentionally trafficked substances he knew to be heroin and furanyl fentanyl. To “traffic” means to sell, give, distribute, transfer, send or administer.

[9] To establish that Mr. Ali is guilty of manslaughter in the death of Mr. Kelly, Crown counsel must prove to the reasonable doubt standard that he caused Mr. Kelly’s death by an illegal act that was objectively dangerous.

[11] With respect to the charges arising on April 9, 2017, the central issues for determination are:

(i) Whether the Crown has established, to the reasonable doubt standard, that the drugs provided to Mr. Kelly by Mr. Walker came from Mr. Ali; and,

(ii) If the answer to question (i) is yes, whether the Crown has established, to the reasonable doubt standard, that the drugs provided to Mr. Kelly by Mr. Walker caused his death.


Issue One: Did Tahir Ali supply the drugs sold to Shawn Kelly by Ryan Walker?

[14] Officer Graeme Harbottle was a scenes of crime officer with the South Simcoe Police Service in April 2017. He attended the Kelly residence on the morning of April 10, following the discovery of Shawn Kelly’s body. He located, on a night table beside Mr. Kelly’s bed, a 1” x 1” plastic baggie – popularly known as a “dime bag” – with a small amount of white, powdery substance in it. It was underneath an open pack of batteries.

[17] On December 7, 2018, Ryan Walker pleaded guilty before Justice C.M. Harpur of the Ontario Court of Justice, to one count of trafficking in fentanyl and to one count of criminal negligence causing death. He agreed that he was a “low level” drug dealer and that he had supplied furanyl fentanyl and heroin to Mr. Kelly on April 9, 2017.

[18] The Crown asserts that Mr. Walker was really nothing more than a mule on April 9, 2017 and that the drugs sold to Mr. Kelly came from Mr. Ali. The evidence offered in support of that. assertion was both direct and circumstantial. The direct evidence came from the testimony of Mr. Walker who said that Mr. Ali supplied him with the drugs he provided to Mr. Kelly. By way of circumstantial evidence, the Crown adduced photographs that show Mr. Walker arriving and leaving in Mr. Ali’s vehicle at the time he sold the drugs to Mr. Walker. Moreover, less than three weeks later, Mr. Ali was arrested and found to be in possession of drugs of a similar constitution to those sold to Mr. Kelly.

[20] The Crown must take its witnesses as it finds them. In Mr. Walker’s case, that means an opioid addict, who has trafficked in opioids to support his addiction. He has admitted to trafficking the opioids that killed Shawn Kelly. These characteristics, in themselves, would not lead me necessarily to reject Mr. Walker’s testimony on credibility or reliability grounds. But Mr. Walker is also a liar. And while some of what he testified to might be true, I find that there is just as much chance that any or all of it is false.

[22] It is unnecessary for me to determine whether a Vetrovec warning is appropriate in this case. There are so many inconsistencies and obvious lies in Mr. Walker’s evidence that it is simply impossible to rely upon it. Here is a list of some of its shortcomings:

(a) He testified that he was an opioid addict, not a drug dealer. His text messaging conversations with Mr. Kelly make it clear that he was, in fact, a drug dealer. Moreover, he admitted to Justice Harpur that he was a “low level” drug dealer with 3-10 customers;


(f) In a statement he made to DC Johnson on August 30, 2017, Mr. Walker said he put pregabalin in the baggie he sold to Mr. Kelly, thereby ripping him off. He admits that was a lie; and,

(g) He testified under cross-examination that he could not recall what the term “stickers” meant. He had used the term in text conversations with Mr. Kelly. “Stickers” is coded language for fentanyl patches. I have no doubt that Mr. Walker recalled what the term meant. Indeed, later in his examination he agreed that it meant fentanyl patches.

[23] I generally do not put much stock in a witness’ demeanour. Mr. Walker is a special case. He was reasonably polite and responsive to Crown counsel’s questions. With defence counsel he was argumentative, rude, frequently insulting and often non-responsive. His conduct was completely beyond the pale.

[24] Like any witness, I may choose to accept and rely upon some, all or none of Mr. Walker’s evidence. I suspect that some of what he said was true. But so much of what he said was not true that I cannot have any confidence in the truth of the really important part – the part where he said Mr. Ali supplied him with the drugs that he sold to Mr. Kelly.

[26] First, the Crown adduced photographic evidence that suggests that Mr. Ali drove Mr. Walker to the PetroCanada gas station across the street from Mr. Kelly’s home on the 25th sideroad of Innisfil on April 9, 2017. I accept that he did. I accept that Mr. Ali had an opportunity to supply Mr. Walker with the drugs he subsequently sold to Mr. Kelly.

[27] Second, the Crown adduced evidence, which I will come to in more detail momentarily, that on his arrest on April 28, 2017, Mr. Ali was found in possession of a number of prohibited substances, including 6.8 grams of a mixture of furanyl fentanyl, heroin, caffeine and dimethylsulphone. Recall that this is the same combination of substances found in the dime baggie in Mr. Kelly’s bedroom.

[28] Given that I am not prepared to accept Mr. Walker’s evidence regarding the source of the drugs he sold to Mr. Kelly, the Crown’s assertion that Mr. Ali supplied those drugs hinges on the strength of the circumstantial evidence I have just described.  I must, of course, consider that evidence in the context of the evidence as a whole.  And, I must apply the reasonable doubt standard to that evidence.  In cases, like this one, where proof of one or more elements of an offence depends exclusively, or even largely, on circumstantial evidence, I must be satisfied that Mr. Ali’s guilt is the only reasonable inference that the circumstantial evidence permits.  See R. v. Villaroman, 2016 SCC 33, at para. 30.

[29] In my view, the circumstantial evidence is not capable of pulling the necessary freight to support a conviction on any of counts 1, 2 or 3. There are too many other reasonable inferences available from the evidence. For instance:

(a) While I conclude that Mr. Ali was certainly engaged at times in dealing drugs from his cab, he was also, at other times, actually operating as a cab. Mr. Walker testified that he had used Mr. Ali as a cab driver many times. It may well be that Mr. Ali was dealing drugs out of his cab on April 9, 2017. It may also be that he simply drove Mr. Walker to and from the Petro Canada;

(b) While Mr. Ali may have been one source of opioids for Mr. Walker, I think it likely that he had other sources as well; and,

(c) The drugs found in Mr. Ali’s possession appear similar in composition to those found in Mr. Kelly’s bedroom. The significance of that similarity depends on the Crown’s ability to reduce or eliminate the chance of coincidence. In this case, I have no idea how common that particular mixture of drugs was on the streets of Simcoe County in April 2017. It might have been very commonly available, or it may have been rare, or something in between. I also have no evidence of the proportions of the drugs in the mixtures found in Mr. Kelly’s room and in Mr. Ali’s car. They may have been identical or markedly different. The chance of coincidence remains in play and reduces the probative strength of the inference that the drugs found in Mr. Ali’s cab are the same as the drugs found in Mr. Kelly’s bedroom.

[30] All things considered, I have a very strong suspicion that Mr. Ali supplied Mr. Walker with the drugs he sold to Mr. Kelly on April 9, 2017. But a strong suspicion is not the same as proof beyond a reasonable doubt.

[31] I am not satisfied, in the result, that the Crown has proven to the reasonable doubt standard that Mr. Ali either possessed heroin and furanyl fentanyl for the purpose of trafficking or trafficked in furanyl fentanyl or heroin on April 9, 2017. Consequently, I find Mr. Ali not guilty of counts one and two. Moreover, since the “unlawful act” of the manslaughter charge in this case is the trafficking of furanyl fentanyl and heroin on April 9, 2017, Mr. Ali is necessarily acquitted of count three.

Issue Two: Did the drugs Mr. Walker sold to Mr. Kelly cause his death?

[32] In view of my conclusions regarding Issue One, it is, strictly speaking, unnecessary for me to address this second issue. I will make a few brief comments, however, because in my view, even if I had been satisfied that Mr. Ali supplied the drugs that Mr. Walker sold to Mr. Kelly, I would still have had a reasonable doubt about causation.

[34] In my view, the drugs sold to Mr. Kelly by Mr. Walker probably caused his death. In fact, I would say there is a substantial likelihood that they did. But again, a substantial likelihood is not proof beyond a reasonable doubt.

[35] Doubt arises in my mind for several reasons.

[36] First, there is a lack of credible evidence about the difference between what the drugs weighed at the time they were purchased by Mr. Kelly and how much they weighed at the time they were seized by the police.

[37] Officer Harbottle said he weighed the baggie with the drugs in it, at 13.3 grams. Later the drugs were taken out of the baggie and sent to Health Canada for investigation. But they were not weighed separately at that time.

[38] There is simply no way that the drugs and baggie weighed 13.3 grams. At a later date a little plastic prescription pill bottle with white powder in it was seized from Mr. Ali’s car. It weighed 13.9 grams. The drugs inside were weighed separately at 6.8 grams, meaning the pill bottle weighed 7.1 grams. There is no way an empty dime baggie weighs more than a plastic pill bottle. The upshot is that the contents of the baggie found in Mr. Kelly’s bedroom had to weigh more than 6 grams, which strikes me as highly unlikely. If it is accurate, then those clearly were not the drugs supplied by Mr. Walker.

[39] Given the state of the evidentiary record, there is no means of determining how much of the substance supplied by Mr. Walker was ingested by Mr. Kelly.

[40] Second, toxicology reports prepared on samples of Mr. Kelly’s femoral and heart blood, as well his urine, revealed a fairly wide range of drugs in his system. While they included furanyl fentanyl and derivatives of heroin, they did not include dimethylsulphone or caffeine.

[41] Third, an expert toxicologist – Dr. Lamparter – testified that morphine was detected in Mr. Kelly’s femoral blood and urine. In addition, 6-monoacetylmorphine (“6-MAM”) was detected in his urine.

[42] Heroin, she said, is only detectable in the bloodstream for about 30 minutes. After that, it is metabolized into 6-MAM, which is in turn metabolized into morphine. Morphine may be present in the blood for up to a day. She further testified that the fact that Mr. Kelly had 6-MAM in his urine, meant that he had ingested heroin at some point. She could not say whether he ingested it more than once. But it can be detected in the blood for only about 3 hours. The fact that it was detected in his urine, but not his blood, suggests that he ingested heroin at least 3 hours prior to death.

[43] Based on the evidence of the toxicologist and the forensic pathologist, Dr. Herath, I conclude that Mr. Kelly died of an overdose of furanyl fentanyl. The packet of drugs identified as having been sold by Mr. Walker to Mr. Kelly, included both heroin and furanyl fentanyl. While the concentrations of each may not have been distributed equally in the baggie, I think it likely that both drugs would have entered Mr. Kelly’s system at the same time, regardless of the means of ingestion he employed. The upshot is that it seems unlikely that any of the contents of that particular packet were ingested by Mr. Kelly within 3 hours of his death.

[44] While Dr. Lamparter said that death from a fatal overdose of opioids could take hours, she was not aware of any case studies where a person took a fatal dose of fentanyl and lived for hours. Mr. Kelly clearly lived for hours after taking heroin. That means that either the mix of heroin and furanyl fentanyl in the baggie beside his bed killed him more than three hours after ingestion, or he had another source of furanyl fentanyl.

[45] Mr. Kelly was an opioid addict. Although there were no other packets of furanyl fentanyl or heroin found in his room, it is possible that he had drugs from sources other than Mr. Walker and possible that he ingested them on the night of his death.

[46] Again, while I think it very probable that the drugs provided to Mr. Kelly by Mr. Walker are the ones that killed him, I cannot be entirely sure. That means that I must acquit Mr. Ali of manslaughter.