The Crown applied for an order appointing state-funded counsel for the complainant in a pretrial application for the production of counseling records under s. 278.3 of the Criminal Code.
The court held that it was bound by vertical stare decisis to follow the Superior Court of Justice decision in R. v. Smith, which established that the Ontario Court of Justice has jurisdiction by necessary implication to make such orders as a matter of course.
While granting the order, the court expressed significant reservations about the Smith framework, noting concerns regarding the separation of powers, the expansion of the doctrine of necessary implication to mandate provincial spending, and the development of this jurisprudence in the absence of a true adversarial dispute.
