



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

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    information that could identify the victim or a witness shall not be published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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 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 at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(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).

(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.

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    the victim shall not be published in any document or broadcast or transmitted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

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

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

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

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    of that section, shall not be published in any document or broadcast or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

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c.
    13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. N.C., 2019 ONCA 484

DATE: 20190612

DOCKET: C63707

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.C.

Appellant

Faisal Mirza, for the appellant

Avene Derwa, for the respondent

Heard: March 27, 2019

On appeal from the conviction entered on February 28,
    2017 by Justice Larry B. OBrien of the Ontario Court of Justice.

Hoy A.C.J.O.:

[1]

Following a trial by judge alone, the appellant, N.C., was convicted of
    11 human-trafficking, sexual and violent offences in relation to his former girlfriend,
    J.W.: robbery (s. 343); assault causing bodily harm (s. 267(b)); procuring
    prostitution (s. 286.3(1)); financial benefit from prostitution (s. 286.2(1));
    proceeds of indictable offence (s. 355(a)); sexual assault causing bodily harm
    (s. 272(2)); assault (s. 266); transport to a bawdy house (s. 212(1)(a));
    trafficking a person (s. 279.01(1)); financial benefit from trafficking a
    person (s. 279.02); and withholding a travel document (s. 279.03). He was sentenced
    to a total of five and one-half years incarceration, less three months on
    account of pre-trial custody and restrictive bail conditions.

[2]

The appellant was arrested following a violent incident in the parking
    lot of a Kingston apartment building, during which several witnesses heard J.W.
    scream and saw her being dragged out of the appellants car.

[3]

Screenshots taken by police of over 400 iPhone text messages between the
    appellant and J.W. that J.W. provided to the police were admitted at trial with
    the consent of the appellant. The text messages were highly cogent evidence of
    the appellants control over J.W.s sexual, physical and financial autonomy.

[4]

The appellant appeals his convictions and seeks a new trial. He makes
    three main arguments.

[5]

First, he argues that the Supreme Courts decision in
R. v. Marakah
,
    2017 SCC 59, [2017] 2 SCR 608, released following his trial, fundamentally
    changed the law of search and seizure, and he is entitled to a new trial to
    argue, based on
Marakah
, that the text messages adduced at trial were
    obtained in violation of s. 8 of the
Charter

and ought to be
    excluded pursuant to s. 24(2).

[6]

Second, he argues that the trial judge reversed the onus of proof.

[7]

Finally, he argues that the verdicts on counts 1 (robbery) and 11
    (withholding a travel document) were unreasonable.

[8]

Below, I address these arguments in turn.

1.

The
Marakah
Argument

[9]

In
Marakah
, the Supreme Court considered whether Nour Marakah
    had standing to argue that text messages he sent regarding illegal transactions
    in firearms that were recovered from his accomplices iPhone should not be
    admitted against him. The police search of his accomplices phone was not
Charter
-compliant.
    A majority of the Supreme Court concluded that, depending on the totality of
    the circumstances, text messages that have been sent and received may in some
    cases be protected under s. 8, and, in that case, Mr. Marakah had standing to
    argue that the text messages at issue enjoyed protection under s. 8.

[10]

The
    Supreme Court was clear that an exchange of electronic text messages will not
    always attract a reasonable expectation of privacy and protection under s. 8.
    [W]hether a reasonable expectation of privacy in such a conversation is
    present in any particular case must be assessed on those facts by the trial
    judge:
Marakah
, at para. 5. The claimant must have had a subjective
    expectation of privacy in the subject matter of the alleged search, and that
    subjective expectation of privacy must have been objectively reasonable.

[11]

I
    reject the appellants argument that
Marakah
entitles him to a new
    trial.

Leave to raise a new issue on appeal based on a change in the law

[12]

The
    appellant acknowledges that this court generally will not permit an issue to be
    raised for the first time on appeal. And, in requesting a new trial, he effectively
    concedes that the evidentiary record does not allow this court to fully, fairly
    and effectively determine whether the appellant had a reasonable expectation of
    privacy in the text messages. However, in his oral submissions he argues that
Marakah

fundamentally changed the law on the application of s. 8
    of the
Charter

to text messages. The
    premise of his argument is that he could not reasonably have been expected to
    have raised the point at trial. Because the appellant remains in the system, he
    is entitled to have his  culpability determined on the basis of what is held
    to be the proper and accurate interpretation of the law at the time of appeal:
R. v. Wigman
,
[1987]
    1 S.C.R. 246, at pp. 257 and 261. The appellant relies on decisions of the
    Alberta and Saskatchewan appellate courts for the proposition that, in such
    circumstances, the lack of a proper evidentiary record is not fatal, but rather
    supports the necessity of a new trial:
R. v. Albus
,
2015 SKCA 121, 467 Sask. R. 232;
R.
    v. Weir
,
1999 ABCA 275,
    250 A.R. 73.


[13]

The Crown acknowledges that an unforeseen, fundamental change in the
    law of the type considered by the Supreme Court in
Wigman

may warrant an exercise of discretion to hear a new issue on appeal,
    but argues that the Supreme Courts decision in
Marakah

did not constitute such a change. Moreover, the Crown argues,
    relying on
R. v. Reid
, 2016 ONCA 524, 132 O.R.
    (3d) 26, at para. 43, leave to appeal refused, [2016] S.C.C.A. No. 432, that the
    evidentiary record must be sufficient to permit this court to fully,
    effectively and fairly determine the issue raised on appeal, and, as the
    appellant acknowledges in requesting a new trial, the evidentiary record in
    this case is not sufficient for this court to determine the issue he now
    raises.

[14]

In
Reid
,
    at para. 43, relying on
R. v. Brown
, [1993] 2 S.C.R. 918, at p. 927,
per
LHeureux-Dubé J. (dissenting), Watt J.A., for the court, wrote that a party
    seeking to obtain leave to raise an issue for the first time on appeal must
    satisfy three preconditions:

1.

the evidentiary record must be sufficient to permit the appellate court
    to fully, effectively and fairly determine the issue raised on appeal;

2.

the failure to raise the issue at trial must not be due to tactical
    reasons; and

3.

the court must be satisfied that no miscarriage of justice will result
    from the refusal to raise the new issue on appeal.

[15]

Further,
    Watt J.A. added at para. 44, the decision whether or not to grant or refuse
    leave to permit a new argument is a discretionary decision informed by a
    balancing of the interests of justice as they affect all parties.

[16]

However,
    the three-part test in
Reid
was not articulated in the context of a
    change in the law. In
Reid
, the new issue sought to be raised was a
    constitutional challenge to the validity of step six of the procedure
    established by the Supreme Court of Canada in
R. v. Garofoli
, [1990] 2
    S.C.R. 1421, to deal with applications to exclude evidence allegedly obtained
    in breach of s. 8 of the
Charter
.

[17]

More
    recently, in
R. v. J.D.
, 2018 ONCA 947, 367 C.C.C. (3d) 403, this
    court granted leave to the appellant to raise a new constitutional issue on
    appeal based on the Supreme Courts ruling in
R. v. K.R.J.
, 2016 SCC
    31, [2016] 1 S.C.R. 906, which was released after the appellants sentencing, despite
    the fact that the evidentiary record would need to be supplemented to allow the
    parties to properly address whether the alleged infringement of s. 11(i) of the
Charter
was justified under s. 1 of the
Charter
.
The
    court cited
Reid
for the proposition that the onus is on the appellant
    to convince the court to exercise its discretion in favour of hearing an
    argument not raised below; noted that counsels failure to raise the issue
    below could not be described as a tactical decision; and considered the
    potential significant negative impact of the impugned orders under ss. 161(a)
    and (b) of the
Criminal Code
on the appellant and the apparent merits
    of the constitutional argument. The court concluded, at para. 7, that whatever
    problems there may be with assembling an appropriate record are outweighed by
    the appellants legitimate interest in advancing the constitutional issue.

[18]

Further,
    in
Brown
, the majority, in allowing the appeal for substantially the
    reasons given by Harradence J.A. in the Alberta Court of Appeal and ordering a
    new trial on the charge of first degree murder, permitted the Crown and the
    appellant to lead evidence in the new trial going to the new
Charter
issue raised on appeal as a result of the Supreme Courts post-trial decision
    in
R. v. Hebert
, [1990] 2 S.C.R. 151. While Harradence J.A. would have
    set aside the appellants conviction and ordered a new trial, he had found that
    there was a sufficient factual foundation to determine, and had determined, the
    new
Charter
issue in the appellants favour. Arguably, the majoritys
    disposition in
Brown
suggests that it concluded that the evidentiary
    record before Harradence J.A. was not sufficient to fairly determine the new
Charter
issue.

[19]

I
    am not persuaded that
Reid
should be interpreted as having determined
    that where a fundamental or dramatic change in the law is established, the
    inadequacy of the record to support consideration of the impact of that change
    is an absolute bar to the issue being raised on appeal. That issue is for
    another day, when it is determinative of the appeal. Here, I conclude that
    leave should not be granted regardless of that factor.

[20]

As
    I will explain,
Marakah
did not constitute a fundamental change in the
    law between the time that the text messages were introduced into evidence at
    trial and appeal.  Moreover, I am not persuaded that the appellants failure to
    raise the issue at trial was not due to tactical reasons. Those factors satisfy
    me that no miscarriage of justice will result from refusing to order a new
    trial to permit the appellant to argue
Marakah
.


(i)

Marakah was not a fundamental change in the law

[21]

The chronology belies the appellants assertion that this is a case
    where a fundamental change in the law occurred between the admission of the
    text messages at trial and appeal.

[22]

The Crown introduced the text messages through J.W. during her
    evidence in early June 2016. At that time, the s. 8 issue now raised was on
    reserve in this court in
Marakah
. The s. 8
    jurisprudence at the time the text messages were introduced is best described
    as undecided.

[23]

The trial
    court in
Marakah

and several other
    Ontario trial court decisions had held that the sender of text messages
    generally does not have standing to assert a breach of s. 8 of the
Charter
based
    on the search of those text messages stored on another persons cell phone (
R.
    v. Thompson
,
2013 ONSC
    4624, at para. 43;
R. v. Pammett
,
2014 ONSC 1213, at para. 12;
R. v. Keith Ritchie
,
2016 ONSC 765, at para. 36). However,
    in 2012, in
R. v. S.M.
, 2012 ONSC 2949, Nordheimer J. (as he then was)
    had made several comments in
obiter
on the expectation of privacy in
    text message communications. Further, in 2015, after the trial decision in
Marakah
,
the British Columbia Court of Appeal
    had held in
R
.
v. Pelucco
, 2015 BCCA 370, 327 C.C.C. (3d) 151, that police violated a drug
    dealers s. 8 right to be secure against unreasonable search and seizure when
    they read text messages he had sent to an intended purchaser stored on the
    purchasers cell phone. Notably,
Pelucco
was
    the only appellate authority on this issue at the time that the text messages
    were admitted.

[24]

Thus, at the time that the text messages were introduced into
    evidence with the consent of the appellant, there was significant support for
    the argument that the sender of the text messages had a reasonable expectation
    of privacy in the communications after they were received by the intended
    recipient. But the appellant chose not to make that argument.

[25]

The decision of this court in
Marakah

was released on July 8, 2016: 2016 ONCA 542, 131 O.R. (3d) 561. The
    majority of this court held that Mr. Marakah did not have standing to challenge
    the admission of the text messages recovered from his accomplices iPhone.
    Although the appellants trial was still ongoing, the text messages had been
    admitted with the appellants consent a month earlier and the Crown had closed
    its case. The only thing remaining in the trial was to complete the
    cross-examination of the appellant.

[26]

The Supreme Court subsequently reversed this court in
Marakah
and took a position consistent with
Pelucco
.  Any significant change in the law was therefore the Supreme
    Courts reversal of this courts decision in
Marakah
. However, the Supreme Courts decision in
Marakah
did not constitute a significant change from the state of the law
at the time the text messages were admitted at trial

with the appellants consent. Rather, it changed law that was
    established as a result of this courts decision in
Marakah
, which was released
after
the text messages were admitted
.



(ii)

Tactical reasons

[27]

The appellants decision not to object to the admission of the text
    messages is fully explained by his position at trial. The appellants position
    and his testimony at trial was that he had not authored any of the text
    messages and that J.W. may have edited or fabricated them. Of course, that
    position was inconsistent with an assertion that he had a reasonable
    expectation of privacy in the text messages.

[28]


It was open to the appellant to argue that his s. 8 rights were
    infringed when police took screen shots of his text conversation with J.W., but
    he instead consented to the admission of the texts and argued that he had not
    authored them. Tellingly, the appellant does not allege ineffective assistance
    of counsel.

[29]

Further, it is this tactical decision that gives rise to arguments
    about the sufficiency of the record.
Marakah
is clear that whether a reasonable expectation of privacy in a text
    conversation is present turns on a case-specific assessment of the facts. It
    requires an examination of the totality of the circumstances:
R. v.
    Mills
, 2019 SCC 22, at para. 13.

[30]

Because the text messages were admitted at trial with the consent of
    the appellant and because the appellant denied authoring them, it was
    unnecessary for the parties to elicit detailed evidence about the totality of
    the circumstances informing the issue of whether the appellant had a subjective
    and objectively reasonable expectation of privacy in the text conversation or
    about matters that would inform a s. 24(2) analysis. Presumably, the appellant
    would seek to resile from the position that he did not author the texts at a
    new trial. Indeed, the appellants submission that a new trial should be
    ordered effectively concedes that beyond simply raising a new issue, he seeks
    to advance a different theory of the case.


(iii)

Miscarriage of justice

[31]

Where an appellant makes a tactical decision not to pursue an issue
    at trial, it is not a miscarriage of justice to deny him the right to pursue
    that argument on appeal. Societal interest in the finality of litigation in
    criminal matters must take precedence:
R. (R.)
,
at pp. 198-199;
Brown
,
at pp. 923-924.

[32]

Further, even if this court were to accede to the appellants
    submission and order a new trial so that he could raise the s. 8 argument based
    on
Marakah
, assuming for the sake of this
    argument that he could establish a reasonable expectation of privacy in the
    text messages and that the police violated his s. 8 right by photographing them
    in these circumstances (which remains an open issue post-
Marakah
: see
Marakah
, at para. 50), there
    is a strong likelihood that the evidence would not be excluded under s. 24(2)
    of the
Charter
.

[33]

The facts in this case are very different from
Marakah
,
    where a majority of the Supreme Court excluded the text messages on the
    accomplices phone under s. 24(2). In
Marakah
, the text messages were
    on the phone of an accomplice who had not consented to the seizure of his phone
    or to the disclosure of the text conversation in question. Both Mr. Marakah and
    his accomplice asserted reasonable expectations of privacy in the conversation
    and challenged its admissibility on s. 8 grounds.

[34]

Here, the text messages were on the phone of a complainant who had
    been abused by the appellant and seemingly authorized or allowed police to take
    screenshots of the texts. The seriousness of any
Charter
-infringing
    conduct is much less in this case than in
Marakah
, and societys
    interest in the adjudication of this case on its merits is very significant.
    There is a strong likelihood that those factors would outweigh the impact on
    the appellants
Charter
-protected privacy
    interests, such that the admission of the evidence would not be found to bring
    the administration of justice into disrepute.

[35]


Accordingly, I am not persuaded that a refusal to consider the
    admissibility of the text messages in light of
Marakah
risks a miscarriage of justice.

2.

Reversal of the Onus of Proof

[36]

The appellant argues that the Crown improperly cross-examined him,
    by asking him why he did not obtain his cellphone from police to prove he had
    not sent the text messages and by asking him to comment on the veracity of his
    mothers and his new girlfriends statements to police. He says this improper
    cross-examination led the trial judge to reverse the onus of proof.

[37]

I reject this argument. At various points in his reasons, the trial
    judge specifically instructed himself that the burden of production and persuasion
    rests upon the prosecution, that the accused need not prove a motive to
    fabricate on the part of Crown witnesses, that the Crown must prove each
    essential element of the offence beyond a reasonable doubt, that there is no
    obligation on the defence to call any evidence or any witness, and that the
    onus remains on the Crown at all times. The trial judge considered and applied
R
.
v. W.(D.),
[1991]
    1 S.C.R. 742.
Whether or not some of the questions
    posed in cross-examination were excessive, there is no indication that those
    questions led the trial judge to shift the burden of proof to the appellant or
    resulted in a miscarriage of justice.

3.

Unreasonable Verdicts on Counts 1 and 11

[38]

The
    appellant argues that the verdict on count 1 (robbery) is unreasonable and
    cannot stand because the trial judge gave no consideration to self-defence
    during the final incident in the car, despite the appellant having argued self-defence,
    and because the trial judges reasons do not permit appellate review of this
    issue. The appellant also argues that the verdict on count 11 (withholding a
    travel document) is unreasonable because it rests entirely on contradictory
    evidence from J.W. that is neither credible nor reliable.

[39]

I
    reject these arguments. A reasonable trier-of-fact, properly instructed and
    acting judicially, could have convicted the appellant of counts 1 and 11.

[40]

The
    appellants self-defence argument in relation to count 1 relied entirely on his
    version of events. He testified that J.W. got in his car with money in her
    hand, which he assumed was for her phone bills and hotel room. She gave him the
    money, but then asked him to return it. At that point, a man he did not know,
    later identified as Mr. Wilkinson, opened the drivers side door and punched
    him in the head. J.W. then pulled out a knife and swung it at him. He
    restrained her and then got out of the car and scuffled with Mr. Wilkinson. He
    noticed J.W. trying to drive away and re-entered the car. Mr. Wilkinson was in
    the passenger seat screaming, Wheres the money? He told Mr. Wilkinson to get
    out of his car. The appellant then drove away.

[41]

The
    trial judge found that the appellants evidence was illogical, unbelievable,
    and inconsistent in material matters. He rejected his exculpatory testimony
    on the matters before the court and was not left in reasonable doubt by his
    evidence or evidence on his behalf. There is no basis to interfere with the
    trial judges assessment of the appellants credibility.

[42]

Further,
    the trial judge accepted J.W.s narrative of events. J.W. was with a client, in
    the clients apartment. The appellant advised her by phone that he was in his
    car outside, with her drugs. She wanted to end her relationship with the
    appellant. Because she was afraid of him, she took a small steak knife with
    her. She got in the appellants Mercedes and gave the appellant money for her
    drugs. But the appellant did not give her any drugs. Instead, he began beating
    her  including about the face, ripping hair out of her head, and biting her
    rib area. She took out her knife and tried to cut the appellant. But she struck
    something else, breaking the knife, which she then dropped. The appellant
    pulled her out of his car, left her bleeding on the pavement, and drove away,
    with her money.

[43]

Two
    nearby residents testified that they heard J.W.s screams, and one of them
    testified that he attempted to stop the appellants car after he saw J.W.
    thrown out of it. Another resident also saw J.W. being dragged out of the car. J.W.s
    evidence was also corroborated by the photographs of her injuries, the medical
    evidence and text messages between herself and the appellant. There is no basis
    to interfere with the trial judges acceptance of J.W.s evidence.

[44]

It
    is clear from the trial judges reasons why he did not address self-defence.
    His rejection of the appellants exculpatory evidence, and acceptance of J.W.s
    narrative, precluded self-defence. It was unnecessary for the trial judge to
    specifically address the appellants self-defence argument. The verdict on
    count 1 is reasonable.

[45]

The
    appellant argues that the verdict on count 11 (withholding a travel document)
    is unreasonable because J.W. testified that she was in possession of her
    passport on the night of his arrest and conceded she knew where her passport
    was stored when she lived with the appellant.

[46]

J.W.
    testified that while living with the appellant, she first realized he had taken
    her passport when she found it under the mattress. By that point, it had been
    under his control for a couple of months. The appellant would take her passport
    and other forms of identification away regularly. Usually, he would hold on
    to her passport until they got to a hotel and then would give it to her to
    check into the hotel in her name. After she checked in, he would take her
    passport and put it back in the car or another safe place to keep it. He told
    her this was so she could not run off. She believed that he did this to make
    her feel like she was trapped. The fact that J.W. testified she had
    possession of her passport on the date of his arrest and at one point knew that
    the appellant had hidden her passport under the mattress does not make the
    verdict on count 11 unreasonable.

4.

Disposition

[47]

For these reasons, I would dismiss the appeal.

Released: AH JUN 12 2019

Alexandra Hoy A.C.J.O.

I agree Doherty J.A.

I agree B. Zarnett J.A.


