His Majesty the King v. J.M., 2026 ONCJ 2

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

This hearing is governed by section 278.9 of the Criminal Code:

278.9…Publication prohibited. — (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

(2) Offence. — Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Approved for Publication: s. 278.9(1)(c) of the Criminal Code

Ontario Court of Justice

Citation: R. v. J.M., 2026 ONCJ 2 Date: January 5, 2026 Court File No.: Barrie #24-38103066

Between:

His Majesty the King Respondent

— and —

J.M. Applicant

Before: Justice C.A. Brannagan Heard on: 28 November 2025

Reasons for Ruling on Stage 1 Mills (s. 278.3) Application

Approved for Publication: s. 278.9(1)(c) of the Criminal Code

Counsel: Ms. A. Banister-Thompson, counsel for the Applicant Ms. D. Sabbi Appanna, counsel for the Complainant Ms. K. Smyth, counsel for the Crown

C.A. Brannagan J.:

I. OVERVIEW

1J.M. is a police officer. He stands charged with historical allegations of sexual assault (choking), assault, and voyeurism, contrary to ss. 272(1)(c.1), 266, and 162(1) of the Criminal Code.

2The Complainant is J.M.’s ex-wife, K.B.R. They were together for 6.5 years.

3J.M. applies, under s. 278.3 of the Criminal Code, for an order for production of records in possession of the Barrie Police Service (BPS) and the Ontario Provincial Police (OPP).

4These records were provided to the court by the record-holders, pursuant to a subpoena duces tecum. The unredacted BPS records were made sealed exhibit #1-A, and the redacted records are sealed exhibit #1-B. The unredacted OPP records were made sealed exhibit #2-A, and the redacted records are sealed exhibit #2-B.

5The Applicant submits that these records are directly relevant to the Complainant’s credibility, reliability, and potential motive to fabricate the allegations, and should be produced on those bases.

6The Stage 1 hearing was held in this matter, pursuant to s. 278.4(1), on November 28, 2025. The court heard full submissions from counsel for the Applicant, the Complainant, and the Crown. The Applicant’s materials were made sealed exhibit #3, the Complainant’s sealed exhibit #4, and the Crown’s sealed exhibit #5.

7All parties agree that the police occurrence reports in dispute are “records” pursuant to s. 278.1, and that K.B.R. has a reasonable expectation of privacy in them.

8This is my Stage 1 ruling on whether the records should be produced to the court for inspection.

II. THE APPLICANT’S APPLICATION

i. The Records Sought

9The Applicant seeks production of the following sets of records:

A. Occurrence reports in the possession of BPS & OPP relating to the Complainant’s Mental Health Act (MHA) apprehensions:

i. May 9, 2023: #BA23028612 (OPP involvement at Royal Victoria Hospital, “RVH”)

ii. May 31, 2023: #BA23034360 (BPS involvement at RVH)

iii. June 11, 2023, and June 13, 2023: #BA23037766 / #E230759628 / #E230758165 (OPP involvement at Etobicoke hospital)

iv. June 26, 2023: #BA23041234 / #E230833651 (OPP involvement at RVH)

B. BPS occurrence report from August 6, 2024, concerning an ex parte restraining order filed by K.B.R. against J.M. and his removal from the matrimonial home that resulted from that order.

ii. Factual Basis for the Records Sought

10These allegations arise in the context of a deteriorated spousal relationship and an acrimonious separation.

11On May 9, 2023, the Applicant called 911 in relation to K.B.R., as she was reported to have expressed suicidal ideations to him. She was apprehended pursuant to the Mental Health Act.

12Two weeks later, on May 26, 2023, K.B.R. contacted BPS to report a sexual assault that allegedly occurred between January and April of 2022. She was to attend the police station to provide a formal statement to investigators. She did not attend. She failed to respond to multiple return calls placed by the investigating officer.

13J.M. and K.B.R. separated 14 months later, on July 30, 2024. K.B.R. obtained an ex parte restraining order against J.M. one week after that, on August 6, 2024.

14On August 6, BPS attended the matrimonial home and removed J.M. on the strength of the restraining order.

15On August 9, J.M. appeared before the issuing court and responded to the ex parte restraining order that K.B.R. had secured against him three days prior. Having heard from J.M. on K.B.R.’s renewal application, the court declined to extend that order. J.M. chose not to return to the matrimonial home.

16Three days later, on August 12, 2024, K.B.R. called BPS to inquire about the status of her criminal complaint from 14.5 months earlier. The BPS officer explained to her that she had not provided any statement, and that the matter had been closed. The officer suggested K.B.R. provide a formal statement; she told the officer she would think about it and get back to them.

17On August 21, 2024, K.B.R. contacted BPS again and advised that she was now ready to provide a statement. That statement was given to police on September 5, 2024. In addition to the historical sexual assault allegation that she first complained of in May 2023, K.B.R. alleged for the first time an assault from February 2023 and made allegations of voyeurism from the fall of 2023.

iii. Evidentiary Foundation for the Application

18The Applicant has filed an affidavit in support of his Application, being that of Connor Boswell, an articling student at the law office of the Applicant’s Counsel. The information within the affidavit is derived from Crown disclosure and communications with the Applicant and his lawyers.

19Mr. Boswell’s affidavit establishes the facts I have described above in paragraphs 10-17. It also includes, as exhibit ‘A’, a transcript of the statement that K.B.R. gave to BPS on September 5, 2024, and a case file synopsis at exhibit ‘B’, which sets out the criminal allegations as charged by police.

20K.B.R.’s police statement alleges that J.M. has called her “crazy, mentally unwell, mentally unfit thousands of times” and would threaten and/or use his position as a police officer to have her formed under the Mental Health Act.

21Throughout her statement, the Complainant raised the issue of her mental health, without prompting, more than a dozen times to the investigating officer.

22Concerning exhibit ‘B’, the historical criminal allegations include a sexual assault with choking from between January 17, 2022, and April 30, 2022; an assault from February 9, 2023; and a charge of voyeurism from between October 15, 2023, and November 15, 2023.

iv. The Applicant’s Argument In-Brief

23The Applicant’s principal argument in favour of production of the MHA apprehension records is that they are relevant to the complainant’s credibility because of how she articulated to police the reasons behind her apprehensions. K.B.R. claims that she was apprehended because she went off her medication and blames her mother for taking her medication.

24The Applicant claims to have a good faith basis to believe that some of the apprehensions occurred prior to her going off the medication and that her mother did not take all her medication.

25The Applicant submits that the occurrence reports will articulate the true reasoning behind the apprehensions, which in his view carries significant impeachment value for the defence – not because the Complainant was apprehended, but because her narrative to the police is untruthful.

26Because K.B.R. repeatedly told the investigating officer that J.M. abused his position as a police officer to have her apprehended under the MHA, “the Applicant intends to counter the complainant’s narrative”. He believes that these records will contain explanations for K.B.R.’s apprehensions that will demonstrate that J.M. had not weaponized the mental health system against her.

27Notably, J.M. acknowledges that he did call 911 on or about May 9, 2023, because K.B.R. had expressed suicidal ideations. He asserts that K.B.R. made her initial complaint to BPS on May 26, 2023, as a retaliation against him for calling 911. The Applicant wishes to rely on this record to establish a motive to fabricate the criminal allegations.

28The Applicant seeks production of the August 6, 2024, BPS occurrence report as being additionally relevant to the Complainant’s motive to fabricate. He submits that the temporal nature of this occurrence report assists in establishing the Complainant’s motive to fabricate to advance her position in family law proceedings against J.M. Said another way, K.B.R. sought the ex parte restraining order against J.M. one week after their separation to have him removed from the matrimonial home, and only after she was unsuccessful in having the restraining order continued did she contact BPS to renew her criminal complaint from May of 2023.

29The Applicant does not seek production of any of the records to stake a claim that because K.B.R. suffered from mental health issues, she is unreliable or incredible. Nor does the Applicant seek any medical records underlying any of those apprehensions.

III. POSITIONS OF THE RESPONDING PARTIES

i. The Complainant’s Position

30The Complainant opposes the Application in toto.

31Complainant’s Counsel submits the importance of taking a disciplined approach to the production of records in sexual assault cases: “[C]omplainants have privacy interests in highly sensitive information about themselves, the disclosure of which can impact on their dignity”: R. v. J.J., 2022 SCC 28, at para. 45.

32One of the objects of the Mills regime is to ensure that the Complainant’s right to be left alone in these highly personal areas is respected, unless the Applicant can meet the test set out by Parliament: R. v. Clifford, 2002 14471 (ON CA), [2002] O.J. No. 865 (C.A.), at para. 52.

33The Complainant urges the court to dismiss J.M.’s application on the basis that seeking the production of these records amounts to little more than a collateral attack on her credibility. She submits that the MHA apprehension records are extrinsic evidence that are not relevant to any issue in this case, other than to contradict what she told the police about those apprehensions: R. v. Prebtani, 2008 ONCA 735, at para. 130.

34She makes generally the same claims about the August 6, 2024, restraining order occurrence report.

35The Complainant reminds the court that it would be an error in law to infer unreliability or credibility issues solely from the presence of mental illness: R. v. Kruk, 2024 SCC 7, at para. 41; J.J., at para. 6.

36K.B.R. cites to case law supporting the view that, liberally interpreted, police occurrence reports involving MHA apprehensions are analogous to psychiatric records giving rise to a presumption of a reasonable expectation of privacy, and therefore meet the definition of “record” under s. 278.1 on that basis.

37The Complainant submits that the Application should be dismissed at Stage 1. She claims that the Applicant has failed to provide a sufficient explanation as to the basis for seeking production, and that he has failed to adduce an evidentiary basis for same. The Applicant is embarking upon a fishing expedition. He has failed to establish “likely relevance” in the disputed records.

38The Complainant further submits that it is not “necessary in the interests of justice” to order production of these police records. There is no basis to conclude that the records will provide any useful or added information to the Applicant. The Complainant’s privacy interest in these records remains high.

ii. The Crown’s Position

39The Crown joins the Complainant in her submissions.

40The Crown adds that the fact that this information is already in the custody of police does not extinguish the Complainant’s interest in having her privacy protected. Such information should not be disclosed without good reason and, where its disclosure is mandated, it should be “used for the purpose for which it was obtained: the investigation and prosecution of a particular crime”: R. v. Quesnelle, 2014 SCC 46, at para. 39.

41In short, the Crown submits that the Applicant has failed to demonstrate that there is any probative value in the records sought, the Applicant has failed to meet the onus of demonstrating that the records are “likely relevant”, and production of the records is not “necessary in the interests of justice”.

IV. THE LEGAL FRAMEWORK

i. The Mills Regime for Production of Third-Party Records, ss. 278.1-278.91

42Bill C-46 was proclaimed into force on May 12, 1997. Bill C-46 amended the Criminal Code to include ss. 278.1 to 278.91, which provisions deal with the production of records in sexual offence proceedings.

43A summary of the substantive provisions as they relate to this proceeding follows:

• 278.1 – provides the definition of “record” for the purposes of sections 278.2 to 278.92.
• 278.2(1) – (3) – generally prohibits the production of records relating to a complainant or a witness to an accused in proceedings concerning enumerated sexual offences, except in accordance with ss. 278.3 to 278.91. Subsections 278.2(2) and (3) address waiver and notice issues where such records are in possession or control of the prosecution.
• 278.3(1) & (2) – provide that an accused who seeks production of a record referred to in s. 278.2(1) must make an application to the trial judge.
• 278.3(3) – requires that the application be made in writing and set out: (a) the particulars identifying the record sought for production and the name of the party who has possession or control of it; and (b) the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify.
• 278.3(4) – enumerates 11 “assertions by the accused that are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify”. Subsections 278.3(5) & (6) relate to service of the application.
• 278.4(1) – (3) – consideration of a s. 278.3 application is to be held in camera. The record-holder, the complainant or witness, and any other person to whom the record relates may appear and make submissions at the hearing. Each of the parties who participates in the hearing has the right to be represented by counsel.
• 278.5(1) – the trial judge may order the record-holder to produce the record to the court for its review if, after the s. 278.4(1) hearing is held, the court is satisfied that: o (a) the application was made in accordance with ss. 278.3(2) to (6); o (b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and; o (c) the production of the record is necessary in the interests of justice.
• 278.5(2)– the trial judge must consider the salutary and deleterious effects of production on the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness to whom the record relates. There are eight enumerated factors for the court’s consideration.

44The constitutionality of these provisions was upheld in R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668. At paragraph 53, the Court described the statutory framework as follows:

Like O’Connor, Parliament has set up a two-stage process: (1) disclosure to the judge; and (2) production to the accused. At the first stage, the accused must establish that the record sought is “likely relevant to an issue at trial or to the competence of a witness to testify” and that “the production of the record is necessary in the interests of justice” (s. 278.5(1)). Bill C-46 diverges from O’Connor by directing the trial judge to consider the salutary and deleterious effects of production to the court on the accused’s right to full answer and defence and the complainant’s or witness’s right to privacy and equality. A series of factors is listed that the trial judge is directed to take into account in deciding whether the document should be produced to the court (s. 278.5(2)).

The “Likely Relevant” Threshold

45The threshold of “likely relevance” is designed to prevent speculative or unmeritorious requests for production. It requires more than a bare assertion that a record touches on credibility or a related subject; the applicant must point to case-specific evidence or information that logically connects the record to an issue at trial or the competence of a witness to testify: Mills, at paras. 118 & 120; R. v. K.C., 2021 ONCA 401, dissenting reasons of Jamal J.A. (as he then was), at para. 31; R. v. M.B., 2022 ONCA 873, at para. 45.

46The “likely relevant” threshold, while significant, is not overly onerous: R. v. Batte, 2000 5751 (ON CA), [2000] O.J. No. 2184 (C.A.), at para. 65; R. v. Bradley, 2015 ONCA 738, at para. 81.

47It is legally insufficient for the applicant to demonstrate only that the record contains a statement referable to a subject matter relevant to the complainant’s credibility: “the mere fact that a witness has said something in the past about a subject matter on which the witness may properly be cross-examined at trial does not give that prior statement any relevance. It gains relevance only if it is admissible in its own right or has some impeachment value”: Batte, at para. 77; Bradley, at para. 83.

48Since records sought in the s. 278.3 regime are in the hands of a third party, a stranger to the litigation, they are not part of the “case to meet”. The applicant must therefore establish a basis that could enable a trial judge to conclude “that there is actually further material in existence that may be useful to the applicant in making full answer and defence, in the sense that the material is logically probative”: Bradley, at para. 79.

49Because the records have been created by a third party for a purpose unrelated to the investigation or prosecution of the offence, the court must assume as its starting point that the records are unlikely to be relevant; hence, the imposition of the burden on the applicant to demonstrate the likely relevance of what is sought: Bradley, at para. 80.

The “Necessary in the Interests of Justice” Consideration

50Section 278.5(1)(c) requires the applicant to demonstrate to the trial judge, in addition to meeting the “likely relevance” threshold, that the production of the record is “necessary in the interests of justice”.

51The Mills Court held that s. 278.5(2) “gives substance to the requirement that trial judges consider the broad range of rights and interests affected before ordering disclosure to the court.” Consideration of the salutary and deleterious effects of production to the court must include the accused’s right to make a full answer and defence, and the rights to privacy and equality of the complainant or witness or any other person to whom the record relates: Mills, at para. 127.

52Section 278.5(1) provides the trial judge great latitude in the exercise of their discretion, when applied in a constitutional manner. This would include production to an accused of all private records “that may be constitutionally required”, the right to make a full answer and defence being such a constitutional requirement: Mills, at para. 130.

53To assist the trial judge in assessing the “necessary in the interests of justice” component, the Court held: “Where the privacy right in a record is strong and the record is of low probative value or relates to a peripheral issue, the judge might decide that non-disclosure will not prejudice the accused’s right to full answer and defence and dismiss the application for production”: Mills, at para. 131.

54On the other hand, “[i]f the judge concludes that it is necessary to examine the documents at issue to determine whether they should be produced to enable the accused to make full answer and defence, then production to the judge is ‘necessary in the interest of justice’”: Mills, at para. 132.

55Additionally, where the record is established to be “likely relevant” and, after considering the various factors, the judge is left uncertain about whether its production is necessary to make full answer and defence, “then the judge should rule in favour of inspecting the document” since, in borderline cases, “the interests of justice require nothing less”: Mills, at para. 132.

V. APPLICATION OF THE LAW TO THE FACTS

56I have carefully considered the Applicant’s written and oral submissions in this matter. J.M. seeks production of the occurrence reports concerning the Complainant’s Mental Health Act apprehensions for May 9, May 31, June 11, June 13, and June 26, all of 2023, as a means of attacking the Complainant’s credibility, her reliability, and in establishing that she had a motive to fabricate these criminal allegations.

57The Applicant submits that production of the records “will articulate the true reasoning behind the apprehensions which carries significant impeachment value for the defence”, insofar as it is believed that those records will show that she misled or lied to the police about the justification for those apprehensions.

58The Applicant wishes to “counter the Complainant’s narrative” with those reports, which are thought to “contain explanations for the apprehension[s] that demonstrate that the Applicant was not weaponizing the system” against K.B.R.

59The most persuasive arguments advanced by J.M. on this Application are: first, that the May 26, 2023, criminal complaint by K.B.R. was retaliatory for him having called 911 on her two weeks earlier; and, second, that she renewed her complaint to police in August 2024 only after she was unsuccessful at extending the restraining order.

60In other words, the delays in reporting the criminal allegations have proximate temporal connections to and generally coincide with each of those two events, such that the defence may be able to establish that K.B.R. had a motive to fabricate them.

61I am cognizant that it would be an error in law to presume that a delay in reporting is inconsistent with how a “real” victim would behave: R. v. J.W., 2025 ONCA 637, at para. 27.

62Moreover, the timing surrounding the disclosure of a sexual assault allegation, standing alone, cannot give rise to an adverse inference against the credibility of a complainant: J.W., at para. 29.

63But where there is an evidentiary foundation arising from the facts of the case that logically links the timing of the complaint to a legitimate concern relevant to credibility, it is permissible to rely on the delay in reporting to draw that inference: J.W., at para. 27.

64The most widely available instance of this permissible inference arises where the timing of the disclosure supports a defence argument that the complainant had a motive to fabricate: J.W., at para. 28.

65I am satisfied that the Applicant has discharged his onus of showing that there is a reasonable possibility that the information sought in the records for May 9, 2023, and August 6, 2024, is logically probative to an issue at trial, being that K.B.R. might have had a motive to fabricate these criminal allegations.

66J.M.’s argument carries less weight with respect to the balance of the records, however. Each of the other MHA apprehension records post-dates May 26, 2023, when K.B.R. made her first allegation to BPS. None of those other dates appears to have any bearing on further advancing the motive to fabricate rationale, nor is any of them close-in-time to any of the criminal allegations that are the subject matter of this litigation.

67On their face, neither K.B.R.’s allegations of J.M. using his position as a police officer to “weaponize the [MHA] system” against her, nor J.M.’s desire to “counter the Complainant’s narrative” in that regard is material to the disposition of this case:

To make its way into a criminal trial, an item of evidence must also be material. Evidence is material if what it is offered to prove or disprove is a fact in issue. What is in issue is determined by a function of the allegations contained in the indictment and the governing procedural and substantive law. If the fact the evidence is offered to prove is not in issue […] the evidence is immaterial.

R. v. Luciano, 2011 ONCA 89, at para. 207.

68The probative value, if any, of the records from May 31, June 11, June 13, and June 26, 2023, would seem to hinge on the issue of how or why K.B.R.’s MHA apprehensions transpired. But that is of no moment in this litigation. The issue of K.B.R.’s mental health apprehensions for those dates is a wholly collateral matter: see R. v. Krause, 1986 39 (SCC), [1986] 2 S.C.R. 466, at paras. 17-18.

69I recognize that evidence that goes to proving a contradiction has some probative value in that it may make it more probable that the witness is not telling the truth or is not accurate about certain claims. However, in my view, on this record, how or why K.B.R. was apprehended under the MHA on a handful of dates in the summer of 2023 is little more than a distraction that I would discourage either party from pursuing at trial.

70Finally, though I would not go so far as to say that police occurrence reports involving Mental Health Act apprehensions are analogous to psychiatric records – the public and private nature in which those records are respectively prepared offers but one meaningful qualitative distinction between them – there is no question that K.B.R. retains significant privacy interests in these records. That the occurrence reports are in the custody of the police does not diminish her privacy rights: Quesnelle, at paras. 33 & 40.

71On this record, I find that the reports from May 31 and June of 2023 are immaterial to the facts in issue, are of trivial probative value, and their non-disclosure will not prejudice J.M.’s right to make a full answer and defence to these charges.

72I therefore conclude that none of the MHA occurrence reports from May 31, June 11, June 13, or June 26, 2023, can meet the “likely relevance” standard.

73I have considered the factors set out in s. 278.5(2), and I conclude that it is necessary in the interests of justice for me to examine some, but not all, of the disputed records to determine whether they should be produced to enable J.M. to make full answer and defence.

VI. DISPOSITION

74The Applicant’s application for production of the various police records is allowed, in part, as follows:

A. Occurrence reports in the possession of BPS & OPP relating to the Complainant’s Mental Health Act apprehensions:

i. May 9, 2023: #BA23028612 (OPP involvement at “RVH”) will be produced to the court for inspection.

ii. May 31, 2023: #BA23034360 (BPS involvement at RVH) will remain sealed.

iii. June 11, 2023, and June 13, 2023: #BA23037766 / #E230759628 / #E230758165 (OPP involvement at Etobicoke hospital) will remain sealed.

iv. June 26, 2023: #BA23041234 / #E230833651 (OPP involvement at RVH) will remain sealed.

B. BPS occurrence report from August 6, 2024, concerning an ex parte restraining order filed by K.B.R. against J.M. and his removal from the matrimonial home that resulted from that order, will be produced to the court for inspection.