ONTARIO YOUTH COURT OF JUSTICE

WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF YOUNG PERSON NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.—(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.

ONTARIO YOUTH COURT OF JUSTICE

CITATION: R. v. A.A., 2026 ONCJ 189

DATE: 2026 03 31

COURT FILE No.: Toronto

#25 Y4810407

BETWEEN:

HIS MAJESTY THE KING

— AND —

A.A. (A Young Person)

Motion For Directions

and

Application To Admit Other Sexual Activity Evidence and

Records In The Possession Of The Defence

Stage 1

Criminal Code Sections 276, 278.93 – 278.94

Before Justice Brock Jones

Heard on March 12, 2026

Written Reasons for Judgment released on March 23, 2026

Edited Reasons Approved For Publication on March 31, 2026

Criminal Code section 278.95

D. Theriault-Harris.............................................................................. counsel for the Crown

M. Bojanowska................................................................................................ counsel for A.A.

Jones J.:

Introduction

1A.A., a young person under the Youth Criminal Justice Act (“YCJA”), is charged with one count of sexual assault against B.B., allegedly committed on [date redacted]. In a motion for directions, he applies to the youth justice court to determine whether one group of text messages in his possession, shared between him and B.B., qualifies as private records as defined by section 278.1 of the Criminal Code. He admits that a second group of text messages, also in his possession, constitute private records. For those messages, he seeks a ruling that the records meet the Stage 1 admissibility criteria under section 278.93(4) of the Criminal Code. He argues that they are “capable of being admissible” according to the relevant standards in the Criminal Code. He requests that the court set a Stage 2 hearing under section 278.94.

2The messages were exchanged between A.A. and B.B. from [dates redacted]. At that time, they were in an intimate partner relationship. Some messages contain explicit sexual content, while others discuss their relationship status and their feelings for each other. A remaining category of messages generally pertains to matters that would not be protected under the private record screening regime.

3Ms. Bojanowska, counsel for A.A., divided the messages into two groups. The first group, she argues, does not meet the definition of a private record and requests a court order confirming that. If granted, these messages would not be subject to the rest of the applicable record screening process. That is the purpose of the motion for directions.

4Ms. Bojanowska does not dispute that the second group of messages constitutes private records and therefore must be subject to an application. However, she argues that all the messages in Group 2 meet the threshold test at Stage 1.

5While I am generally inclined to accept Ms. Bojanowska’s proposal to split the messages into two groups and send the latter to a Stage 2 hearing, I do not fully agree with her categorization of the messages. Nor do I agree that many of the explicitly sexual messages in Group 2 are capable of being admissible. As I will explain, particularly in sexual assault prosecutions involving children and youth, a trial judge must exercise extreme caution and vigilance before permitting messages of this nature to be considered at a Stage 2 hearing. There is simply no possible lawful use for many of these messages, and they fail the Stage 1 test.

6Ms. Bojanowska requested an additional order as part of her application. If the messages contained in Group 1 were deemed not to constitute “records,” she submits that I should order that they may not form part of the Crown’s case at trial, and the Crown cannot rely upon them to prepare the complainant for testifying.

7The original version of this judgment included information that arguably could have identified either A.A. or B.B. In this version of the judgment, produced for publication, I have changed their initials to A.A. and B.B., which are entirely fictitious and meant to provide them with anonymity. I have also redacted dates, times, and other specific information to ensure that no publication ban in this case would be compromised.

The Alleged Offence

8[Redacted.]

9[Reacted.]

10For the published version of this judgment, the offence may be summarized as a single act of sexual activity that occurred between the parties. B.B. alleges that she did not consent.

Overview of the Text Messages

11A.A. possesses text messages exchanged with B.B. between [redacted.] He describes his relationship with B.B. as a brief, casual, sexual connection. On her client’s behalf, Ms. Bojanowska argues that the messages show a pattern of behaviour where B.B. would manipulate A.A. into continuing their relationship whenever he tried to end it. She would do this through various means. Sometimes, she would communicate in a sexually suggestive way and include overt flattery. Other times, she would react with anger over being misled. She would also plead with him to keep trying a casual relationship and see how it goes. According to Ms. Bojanowska, the messages show that B.B. was never truly comfortable with their ostensibly casual arrangement. Instead, it was a strategy to maintain an intimate relationship with A.A., which she hoped would become exclusive and permanent.

12Ms. Bojanowska argues that the messages are relevant and necessary for A.A.’s defence at trial. First, the messages provide important context for A.A.’s account of what actually transpired between the parties during this period. Second, they offer evidence of B.B.’s motive to lie. B.B. clearly sought more commitment and emotional intimacy than A.A. was willing to give, which was a major point of contention. When he ultimately ended the relationship, she reported his behaviour to the police. Third, Ms. Bojanowska pointed out examples within the messages that are arguably internally inconsistent, as well as externally inconsistent with B.B.’s police statement (and thus her expected testimony at trial). The messages may therefore be used to challenge B.B.’s credibility.

13While there were other aspects of the messages advanced as a basis for their admissibility, for the purposes of what I must decide at Stage 1, I need not provide any further comment.

Law and Analysis

14Criminal Code section 278.92 governs the admissibility in sexual assault prosecutions of any “record,” as defined in section 278.1, if that record is in the possession or control of the accused and the accused seeks to introduce that record into evidence. Records for this purpose include material that “contains personal information for which there is a reasonable expectation of privacy.” This evidence is presumptively inadmissible unless the accused can establish that the criteria in section 276(2) have been met, where the evidence is properly characterized as “other sexual activity.” In all other cases, the accused must demonstrate that the criteria located in section 278.92(2)(b) have been met.

15Other sexual activity is inadmissible if it is being tendered to support either of the “twin myth” inferences. The evidence may be admissible if it is relevant to an issue at trial, involves specific instances of sexual activity, and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice: Criminal Code section 276(2).¹

16At Stage 1 of the application process, the reviewing judge must determine if the evidence is “capable of being admissible”: Criminal Code section 278.93(4); R. v. J.J., 2022 SCC 28, at paras. 23-25. If that threshold is satisfied, the application proceeds to Stage 2 where the complainant has standing and the right to make submissions: see Criminal Code section 278.94(3); J.J. at paras. 93-95.

17In R. v. T.W.W, 2024 SCC 19, the Supreme Court of Canada discussed the criteria for admitting other sexual activity evidence. The evidence is admissible when it relates to “the fundamental coherence of the defence narrative” and when, without it, the defence position would be “untenable” or “utterly improbable”: see paras. 28 and 35. Additionally, evidence of other sexual activity must be “sufficiently specific” and “essential to the interests of justice.”

Group 1 Messages – Motion For Directions

18A complainant has a recognized privacy interest in non-enumerated records if they contain “highly sensitive information… the disclosure of which can impact on their dignity”: see J.J. para. 45. The crucial question is whether the record contains information of an “intimate and highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being”: J.J. at para. 71. Both the content and the context of the record must be considered.

19The text messages in Group 1 are part of a larger conversation between the parties that lasted for a month. At times, they discuss their intimate relationship and mutual expectations. Some messages are explicitly sexual, which generally creates a reasonable expectation of privacy. However, many messages concern topics that are not inherently personal or intimate. For instance, many messages involve making plans or discussing daily activities. At the upcoming trial, Ms. Bojanowska intends to argue that the mostly banal nature of these messages weakens the allegation that the complainant was sexually assaulted by A.A. If everything between the parties continued normally, it could suggest that no assault took place. There is some legal precedent supporting this position: see, for example, R. v. L.S., 2017 ONCA 685.

20The probative value of any messages not classified as a “record” is not to be assessed at this stage, and I express no opinion on the merits of the proposed defence argument. The Crown agrees that most messages placed in Group 1 by Ms. Bonjanowska do not meet the definition of a “record” under section 278.1. Therefore, they do not require an application to be lawfully used at the upcoming trial. However, Mr. Theriault-Harris identified certain messages he argues should be considered a “record,” although he concedes they are potentially relevant and should be addressed at a Stage 2 hearing. During the oral hearing conducted on March 12, 2026, Ms. Bojanowska agreed partially with the Crown’s review of the messages and accepted that some messages she had previously placed in Group 1 should be transferred to Group 2. Upon reflection, they engaged the complainant’s reasonable expectation of privacy.

21I largely agree with the parties’ joint position. While the messages in Group 1 were exchanged before and after the messages in Group 2, which are unquestionably “records,” they are mostly self-contained conversations between the parties on different dates. Each conversation should be examined individually and within its broader context. Not every text message exchange about everyday human interactions becomes a private record simply because it is adjacent to other conversations that meet that standard.

22The messages in Group 1, as identified by Ms. Bojanowska in her written materials, on the following dates, are deemed not to constitute “records” with some exceptions: [redacted.] The exceptions I identified after reviewing the materials and counsel's submissions following the motion for directions are set out in the appendix to this ruling. Some of the identified messages refer to the possible medical needs or treatment of one or both parties. There are also messages that contain sexual or other intimate content or address B.B.’s mental and emotional state. A few messages seem to concern B.B.’s difficulty in processing the parties’ relationship status. I agree with Mr. Theriault-Harris that, considering both the content of the messages and the context in which they arise, B.B. enjoys a reasonable expectation of privacy in them.

23Ms. Bojanowska does not seek to adduce all of these messages at the trial, as I understand her application. Out of an abundance of caution, I have identified the specific messages on these dates that I conclude constitute “private records.” Those messages will be subject to further submissions at the Stage 2 hearing, if necessary.

Group 2 Messages – Stage 1 Application

24Group 2 includes text messages dated [redacted]. Ms. Bojanowska does not dispute that the remaining messages are “private records.” She argues that, despite their frequent sexual content, these messages are crucial to A.A.’s proposed defence at trial. She is not seeking to introduce these messages to suggest that B.B. was more likely to have consented to the sexual activity on [redacted], or to discredit her based on their sexual content. Instead, their primary significance lies in their potential impeachment value and in demonstrating that B.B. had a motive to lie. Those are lawful uses of the evidence.

25I agree that the messages can be used to challenge the credibility of B.B. because of apparent inconsistencies within the messages themselves and between the messages and B.B.’s police statement, which was filed as an exhibit in this application. I do not need to examine the specific aspects of the messages that Ms. Bojanowska identified in her written materials as possibly contradicting key features of B.B.’s police statement for this Stage 1 ruling. I accept that most of the messages in Group 2 may serve a lawful purpose.

26While the messages could also be used for an unlawful purpose, in R. v. Kruk, 2024 SCC 7, the Supreme Court of Canada ruled that as long as the screening mechanisms contained in the Criminal Code are properly employed, and the protections contained within section 276 are respected, other sexual activity evidence “may be used… to resolve inconsistencies between the complainant and the accused’s testimony as to their relationship”: para. 65. Furthermore, where a motive to fabricate on behalf of the complainant is alleged to exist, “a trial judge is obliged to consider it” and “it is not an error to consider whether the circumstances of a particular case support the existence” of such a motive.²Similarly, in R. v. Reimer, 2024 ONCA 519, the Ontario Court of Appeal held that sexualized text messages exchanged by the complainant and the accused could be ruled admissible where the primary issue was one of credibility: see para. 78. Each case will turn on its facts, the positions of the parties, and the identifiable issues at the trial.

27Mr. Theriault-Harris essentially conceded Stage 1. He expressed concern that some messages in this group might violate the restrictions in the Criminal Code but agreed with Ms. Bojanowska’s proposal to further review certain messages for admissibility (or editing) at Stage 2.

28Upon careful review of the messages in Group 2, I am not convinced that all of them should move forward to Stage 2. A significant number of messages, which I have flagged for counsel in the appendix, are explicitly sexual in nature. There is no lawful purpose for these messages at the trial. Even if I were to stretch the protections of section 276 to their limit and accept A.A.’s position regarding the potential probative value of these messages, it would still be, in my view, a grave injustice to allow a teenage complainant to be cross-examined about them. Any probative value would be greatly overshadowed by the risk of prejudice to the broader administration of justice. Furthermore, the psychological and emotional harm to B.B. from having to review and explain these messages in open court would almost certainly be severe.

29In R. v. R.V., 2019 SCC 41, the Supreme Court of Canada described the restrictions section 276 places on the accused’s right to cross-examine the complainant. These are essential to protecting the complainant’s dignity, privacy and equality interests: see para. 40. The judge hearing the application thus performs a vital gate-keeping function and must determine whether the position of the defence can be advanced without reference to the proposed other sexual activity evidence.

30At para. 33, the Supreme Court of Canada wrote:

Testifying in a sexual assault case can be traumatizing and harmful to complainants: see E. Craig, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession (2018), at pp. 4 et seq. Questions about a complainant’s sexual history are often irrelevant, serving no purpose other than supporting the “twin myths” — that a complainant’s past sexual acts make her less worthy of belief or more likely to have consented to the sexual activity in question. Historically, wide-ranging and intrusive inquiries into the complainant’s sexual history were used to distort the trial process and essentially put the complainant on trial: see R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 33.

31The prejudice considered as part of the balancing exercise in a section 276 application is not limited to the harm to the individual complainant but engages broader societal concerns. These include protecting the equality rights of women and promoting the reporting of sexual offending: see R. v. Osolin, 1993 54, at para. 34.

32In cases such as this one, involving a child witness, these considerations take on even greater importance. There is a world of difference between a child answering questions about their sexual experiences and an adult doing so. In A.B. v. Bragg Communications Inc., 2012 SCC 46, a 15-year-old girl found a fake Facebook profile that included unflattering commentary about her appearance, along with sexually explicit commentary. She, through her litigation guardian, sought permission from the trial court for a publication ban on her identity, seeking to remain anonymous while attempting to identify who had defamed her online. Two media groups opposed the request. The Supreme Court of Nova Scotia and the Nova Scotia Court of Appeal denied this request, holding there was insufficient evidence of specific harm to A.B. that would result from her identity being made public.

33The Supreme Court of Canada overturned the Nova Scotia Court of Appeal and ordered that the publication ban be granted. The Supreme Court of Canada held that Canadian law recognizes the “inherent vulnerability of children” across all areas (e.g. criminal, family, civil), and that A.B. required protection from the “relentlessly intrusive humiliation of sexualized online bullying”: see paras. 14 and 17. The Supreme Court of Canada explained that child victims can suffer far more than adult victims when their privacy is not adequately protected. In its earlier decision of R. v. D.B., 2008 SCC 25, the Supreme Court of Canada held, while addressing a publication ban provision contained within the YCJA, that young persons are “vulnerable to greater psychological and social stress” than adults: see para. 87.

34I have no difficulty concluding that B.B. would suffer greatly if she were to be confronted with these explicitly sexual messages. No specific evidence from her is required, as courts may conclude from the materials themselves and the nature of the proceedings that there exists objectively discernible harm: see Bragg Communications at para. 15. In a defence application to introduce other sexual activity evidence, the complainant is not a compellable witness in any event, and it would pervert the intention of these provisions to require the Crown to produce such specific evidence, even if it might have value: Criminal Code section 278.94(2).

35Adolescence is a crucial period in a person's life, marked by rapid cognitive and psychosocial development: R. v. K.J.M., 2019 SCC 55, at para. 54. Much has been discussed about the vital interests protected by section 276 of the Criminal Code and the importance of preventing women from undergoing unnecessary cross-examination about intimate details that have no relevance in a modern criminal court. These concerns are even more significant when the complainant is a child or young person. Courts must carefully protect children and young persons from humiliating, demeaning, or excessively intrusive questioning. Generally, children and young persons should be entitled to greater privacy rights and procedural protections than adults in similar situations: see R. v. Jarvis, 2019 SCC 10, at para. 86.

36While I was made aware that the complainant will be [age redacted] on the date of the trial, and thus a young adult, this does not change my position. She was not yet an adult at the time these messages were exchanged, and “[f]ull maturity and all the attributes of adulthood are not magically conferred on young [adults] on their 18th birthdays”: see R. v. Habib, 2024 ONCA 830, at para. 35. She will still be very young and vulnerable.

37I want to be clear that I mean no criticism of either counsel by rejecting the suggestion that all the messages in Group 2 should proceed to the next phase of these proceedings. Ms. Bojanowska originally proposed that the messages in question would be subject to additional vetting. She does not seek to rely on any of the messages that involve highly personal or sensitive matters, and she does not submit that they would advance her client’s argument. Her application materials were excellent, and she demonstrated great sensitivity to B.B. throughout the application process. Mr. Theriault-Harris agreed to her proposal that vetting occur at Stage 2, and I understand why this approach may have been thought sufficient, especially as he was of the view that not all of these messages would be relied upon in any event.

38However, in my view, the messages I have identified must fail even at Stage 1. The test is questionably low. In R. v. B.G, 2021 ONSC 83, Justice Harris of the Superior Court of Justice held that only “clearly unmeritorious applications” should be denied a second-stage hearing: see para. 21; see also R. v. V.Z., 2022 ONCJ 283, at para. 36; R. v. W.G., 2025 ABKB 58, at para. 19. Nevertheless, and despite the noblest intentions of counsel, there are cases where the introduction of other sexual activity evidence can only invite myth-based reasoning or otherwise constitute egregious prejudice to either the individual complainant or the administration of justice at large: see R. v. Sandhu, 2024 ABCA 47, at paras. 23-37.

Orders and Directions For Stage 2

39The messages that constitute Group 1 are not private records, save and except for the handful of specific messages I identified to counsel. Those messages will now form part of Group 2.

40The messages that constitute the newly refined Group 2 will be the subject of a Stage 2 hearing. However, the messages I identified to counsel that fall within this group, and that I have concluded have little to no probative value and are explicitly sexual, fail the Stage 1 screening requirements. They will not form part of the evidence at Stage 2, and counsel are ordered not to question B.B. about them during the trial.

41Ms. Bojanowska requested an order that the Crown cannot use any of the messages contained in Group 1 that were not otherwise discoverable but for the defence bringing a motion for directions. The Superior Court of Justice has ruled in two reported decisions that this may be an appropriate order in some cases: see R. v. Pogrebennyk, 2026 ONSC 1143, at para. 29; R. v. B.J., 2025 ONSC 7148, at paras. 8-10.

42Mr. Theriault-Harris informed me that he did not intend to rely on any of these messages with the complainant during her examination in chief. However, he raised a legitimate concern that if the complainant referred to the messages herself during her testimony, and he were subject to an order that he could not ask her questions about them, it would place him in a very difficult position and unfairly restrict the Crown’s ability to present its case.

43I find this argument persuasive. I do not find this is an appropriate case to preclude the Crown from relying upon the Group 1 messages as it prepares for trial or during the complainant's examination in chief. The messages were shared between the complainant and A.A. Presumably, the complainant still has her copy, rendering the proposed ruling potentially academic, and calling into question whether they were not otherwise discoverable by the Crown. Additionally, while there may be circumstances in which such an order would be appropriate, generally, prosecutorial discretion must be respected. Prosecutors must be able to “make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference”: see Miazga v. Kvello Estate, 2009 SCC 51, at para. 47; R. v. C.T., 2023 ONCJ 124, at paras. 34-37.

44Prohibiting Mr. Theriault-Harris from making any reference to the messages during his examination of the complainant would not serve any necessary purpose and could add yet another needless complication to the already time-consuming and difficult nature of a sexual assault trial. A copy of this ruling and the attached appendix shall be provided to the complainant’s counsel, Ms. Samantha Kettner, to prepare for the Stage 2 hearing. Understanding the complainant’s perspective on her privacy rights in the Group 2 messages may also require placing them in the context of the entire text message history between the two parties, which spans both sets of messages. B.B. should be granted the opportunity to review all the messages beforehand. That feature also distinguishes this case from the reported decisions I mentioned earlier, in which courts have granted the defence's request for such an order.

45That being said, Ms. Bojanowska may cross-examine the complainant regarding her knowledge of this application and its contents, in an effort to impugn her credibility if she deems it advantageous during the trial, subject to my oversight: see J.J. at para. 189.

Footnotes

1. 1Criminal Code section 276(4) clarifies that “sexual activity” includes “any communication made for a sexual purpose or whose content is of a sexual nature.”
2. 2Emphasis in the original decision.