WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — 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.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Publication prohibited
- 278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:
o (a) the contents of an application made under subsection 278.93;
o (b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;
o (c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and
o (d) the determination made and the reasons provided under subsection 278.94(4), unless
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.
Offence
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
Approved for Publication: s. 278.95(1) of the Criminal Code
ONTARIO COURT OF JUSTICE
CITATION: R. v. J.M., 2026 ONCJ 170
DATE: 26 March 2026
COURT FILE No.: Barrie #24-38103066
BETWEEN:
HIS MAJESTY THE KING
Respondent
— AND —
J.M.
Applicant
Before Justice C.A. Brannagan
Heard on 25 February 2026
Reasons for Ruling on Defence Stage Two Application (s. 278.92/.94)
Approved for Publication: s. 278.95(1) of the Criminal Code
Ms. A. Banister-Thompson.………………………………………counsel for the Defence
Ms. K. Smyth...………………………………………………………. counsel for the Crown
Ms. D. Sabbi Appanna……………………………………….counsel for the Complainant
I. OVERVIEW
1This is a Stage Two Ruling following a succession of pre-trial applications concerning the admissibility of evidence in J.M.’s upcoming criminal trial.
2The central issue addressed here is whether certain electronic communications in J.M.’s possession – i.e., those which survived Stage One scrutiny – can be admitted into evidence at his trial.
3The Stage One Ruling on this issue can be found at R. v. J.M., 2026 ONCJ 77 (“Stage One Ruling”), which was an omnibus Ruling addressing Stage One considerations for a Defence application under s. 278.92/.93, and a Crown application seeking to introduce extrinsic discreditable conduct, the latter of which I dismissed.
4In that decision I ruled that two categories of text messages between J.M. and his former spouse – the complainant in this matter, K.B.R. – were capable of being admissible and could proceed to Stage Two.
5The two categories of messages that met the Stage One screening threshold include:
i. those that were conceded by the Crown as meeting the statutory requirements (Tabs 1-12, 14, 16-17, 20-22, 24 & 26); and,
ii. a contested category of messages that the Applicant asserted to be relevant to credibility and a motive to fabricate (Tabs 18-19 and 28): see Stage One Ruling, at paras. 35, 77, 79, and 82(c) & (d).1
6During oral submissions on February 25th of this year, J.M. abandoned his application concerning Tabs 5, 9, 10, 12, 20 & 21.
7Therefore, there are a total of 17 sets of text messages that remain at issue here: Tabs 1-4, 6-8, 11, 14, 16-19, 22, 24, 26 & 28.
8The admissibility of these text messages turns on the application of the law prescribed by s. 278.92(2) & (3).
II. RECORDS IN POSSESSION OF THE ACCUSED, SECTION 278.92
9For ease of reference, I reproduce the test for admissibility under s. 278.92 that is applicable to the records at issue here:
Requirements for admissibility
(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,
(b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
Factors that judge shall consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the judge, provincial court judge or justice considers relevant.
10Under s. 278.92, records in an accused’s possession are presumptively inadmissible. Following the s. 278.93–.94 procedure, the judge must determine whether the evidence is relevant to a live issue and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice, taking into account the mandatory factors in s. 278.92(3) (including full answer and defence, privacy/dignity, equality and myth‑avoidance, societal interests in reporting and treatment, and trial fairness).
11The analysis involves:
i. identifying the precise issue and permissible inferences;
ii. assessing probative value (relevance, cogency, materiality);
iii. assessing prejudicial dangers (privacy, stereotype risk, distraction/expansion of issues, unfair prejudice); and
iv. weighing the two, with redactions or limiting instructions where appropriate.
i. The Applicant’s Position
12J.M. seeks to adduce the communications associated to the following Tabs for the following purposes:
i. To contradict the complainant’s general characterization of the relationship (Tabs 1-3 & 6-7);
ii. To contradict the complainant’s assertion that she is solely responsible for all the work around the house (Tabs 1, 3, 8, 24 & 26);
iii. To contradict the complainant’s assertion regarding financial abuse (Tabs 4, 14 & 16-17);
iv. To provide context to the complainant’s characterization of the Applicant being controlling about who would come to the house (Tab 11);
v. To demonstrate the allegations the complainant makes any time the relationship is breaking down (Tabs 18, 19 & 28); and,
vi. To contradict the complainant’s position that the Applicant withheld the children from her, when it is claimed there was otherwise a legitimate purpose (i.e., CAS order) (Tabs 20-22).
ii. The Positions of the Complainant and the Crown
13The Complainant, K.B.R., opposes the admissibility of these messages wholesale. She submits that they have little or no probative value, intrude unnecessarily into highly personal areas, and risk reviving discredited stereotypes about complainants in cases of sexual offences. She argues there is no demonstrated nexus between the messages and the sexual allegations at issue.
14The Crown aligns with the Complainant, emphasising that admitting the messages would replicate the concerns underlying my earlier dismissal of the Crown’s application for admission of off-count discreditable conduct, including by expanding the scope of the trial; distracting from the material issues; and creating an atmosphere of unfairness.
iii. The Ruling on the Crown’s Extrinsic Discreditable Conduct Application
15Given the issues raised by the parties, it is necessary to briefly revisit aspects of my Ruling on the Crown’s extrinsic discreditable conduct application.
16In that Ruling, I acknowledged the long-standing legal principle that a defendant’s prior discreditable conduct is a recognized category of evidence that arouses the potential for prohibited chains of reasoning. For that reason, Crown-led evidence of a defendant’s extrinsic discreditable character is presumptively inadmissible: Stage One Ruling, paras. 46-49.
17The narrow basis for reception of a defendant’s off-count bad character evidence is that it may be admitted where there is an issue in the trial of the offence charged to which evidence of that misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse: Stage One Ruling, para. 50.
18Having carefully considered the evidence and the submissions before me, I determined that the Crown’s application to admit the presumptively inadmissible evidence of off-count bad character was not material to any of the facts in issue in this case. I found that it was incapable of proving any of the “live conduct” that forms the central allegations here. Moreover, I found that admitting such evidence had the potential to significantly prejudice J.M., painting him to be the kind of person who is likely to have committed the charged offences, as opposed to offering actual proof that he had done so: Stage One Ruling, paras. 66-68.
19At bottom, I found that the evidence sought to be adduced by the Crown was “limited in specificity and connection to the issues at trial [and] does not meet the level of similarity, temporal proximity, or clarity contemplated for evidence that is ‘highly relevant and cogent [such] that its probative value in the search for truth outweighs any potential for misuse’”: Stage One Ruling, para. 69.
III. ANALYSIS
i. Where Evidence May Be Relevant to Multiple Purposes
20Evidence that is inadmissible for one purpose may be admissible for another. In such cases, trial judges must specify the issue, purpose and use for which such evidence is tendered and to articulate the reasonable and rational inferences which might be drawn from it. When evidence is admissible for one purpose, but not for another, the fact finder needs to be mindful of and respectful of its permissible and impermissible uses: R. v. Calnen, 2019 SCC 6, at para. 113; R. v. Handy, 2002 SCC 56, at paras. 31-48 ; R. v. B.(F.F.), 1993 167 (SCC), [1993] S.C.J. No. 21, at para. 71; R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670 (Q.L.), at para. 38.
21Although the Crown was not permitted to adduce extrinsic discreditable conduct evidence about J.M. for narrative purposes, that Ruling does not preclude me from considering whether comparable evidence tendered by the Defence may be admissible for a different, legally permissible purpose.
22I remain aware, however, that admitting some of the evidence sought to be adduced by J.M. could divert attention from the material issues and risk expanding the scope of the trial beyond what is necessary. That could lead to an unfocussed proceeding and could undermine the appearance of fairness to the Complainant, including her reasonable expectation of privacy in these records.
ii. The Balancing Exercise
23I have reviewed each of the 17 sets of text messages that the Applicant seeks to have admitted at his trial.
24In consideration of the test for admission set out in s. 278.92(2), and the factors enumerated at s. 278.92(3)(a) through (i), I am not persuaded that the following sets of text messages are relevant to an issue at trial or that they have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice:
i. Tabs 1-3 & 6-7 (alleged to rebut the complainant’s general characterization of the relationship);
ii. Tabs 1, 3, 8, 24 & 26 (alleged to rebut the complainant’s assertion that she is solely responsible for all the work around the house);
iii. Tabs 4, 14 & 16-17 (alleged to rebut the complainant’s assertion regarding financial abuse); and,
iv. Tab 11 (alleged to provide context to the complainant’s characterization of the Applicant being controlling about who would come to the house).
25In my view, the content of these messages amounts to mundane, trivial, interpersonal matters which do not bear meaningfully on the specific allegations. They are insufficiently connected to the live issues at trial. Their probative value is minimal. They risk distracting from material issues and inviting impermissible reasoning based on general relationship dynamics. I find that they are inadmissible.
26On the other hand, I find the following groups of text messages to occupy a different legal category. They relate directly to J.M.’s theory that K.B.R. had a motive to fabricate allegations when the relationship was deteriorating. They are tied in time and content to the breakdown of the relationship and may assist in evaluating credibility. Their probative value is potentially significant, and although privacy concerns subsist, they do not substantially outweigh the probative value of these records. Subject to redaction, I find that these messages are admissible:
i. Tabs 18, 19 & 28 (alleged to demonstrate the complainant makes accusations against J.M. any time the relationship is breaking down); and,
ii. Tab 22 (alleged to contradict the complainant’s position that J.M. withheld the kids from her, when it is claimed that there was a legitimate purpose for having done so (i.e., CAS order).
27Counsel should remain alert to the risk that some of these communications may contain prior consistent statements by both J.M. and K.B.R. Such evidence is presumptively inadmissible unless it meets a recognized exception. Counsel are encouraged to direct their minds to this issue carefully before the trial proper.
IV. DISPOSITION
28The Applicant’s Stage Two application is allowed, in-part, as follows:
i. Tabs 1-4, 6-8, 11, 14, 16-17, 24 & 26 shall not be elicited at J.M.’s trial; and,
ii. Tabs 18-19, 22 & 28 may be elicited at J.M.’s trial, subject to the usual rules of evidence.
29I will hear submissions from Counsel regarding the scope and particulars of any proposed redactions to the second category of electronic communications.
Released: 26 March 2026
Signed: Justice C.A. Brannagan