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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 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 COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
B.A.
Before Justice Peter N. Fraser
Heard on February 2, 2026
Reasons for Judgment released on April 6, 2026
K. Garret counsel for the Crown
A. Shahid counsel for the accused B.A.
Fraser J.:
1The Crown applies for an order appointing counsel for the complainant, and directing the Ministry of the Attorney General to provide funding, in the context of an application under s. 276(2) of the Criminal Code.
2The respondent stands charged with sexual assault and assault against a prior intimate partner named P.G. on September 19, 2023. He has applied to lead evidence of sexual activity involving the complainant that is outside the subject matter of the charges. Accordingly, the applicant filed a motion under s. 278.93 of the Code, requesting that I convene a hearing to determine the admissibility of the proposed evidence. On January 5, 2026, I granted the motion and ordered a hearing pursuant to s. 278.94.
3The Crown sought an order appointing counsel for the complainant, who has standing at the “stage two” hearing to appear, be represented by counsel, and make submissions. While the respondent was not opposed, I requested submissions from counsel in light of Moore J.’s decision in R. v. Z.K., 2025 ONCJ 273, which had cast some doubt upon the Court’s jurisdiction to make these kinds of orders.
4On February 2, 2026, I granted the motion and signed the order appointing counsel, with reasons to follow. These are the reasons.
The Jurisdictional Issue
5In cases of sexual assault, the admissibility of the complainant’s sexual activity outside the subject matter of the charges is governed by s. 276(2) of the Criminal Code. An accused who seeks to adduce such evidence is required to bring a motion, pursuant to s. 278.93. The complainant does not have standing to participate at this first stage of the process. If the trial judge decides to convene a hearing, the procedure is set out in s. 278.94. The section creates participatory rights for the complainant at this second stage:
Hearing — jury and public excluded
278.94 (1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.92(2).
Complainant not compellable
(2) The complainant is not a compellable witness at the hearing but may appear and make submissions.
Right to counsel
(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.
6There is no Criminal Code provision which empowers a judge to appoint state-funded counsel for the complainant in respect of ss. 276(2) or 278. Having heard the submissions of Crown counsel, however, I am persuaded that I have the power to do so according to the doctrine of “jurisdiction by necessary implication.” This power was recognized by the Supreme Court in R. v. Cunningham, 2010 SCC 10. In that case, the Court explained that Superior Courts possess inherent jurisdiction to ensure they can function as courts of law and fulfill their mandate to administer justice. Inherent jurisdiction includes the authority to control the process of the court, prevent abuses of process, and ensure the machinery of the court functions in an orderly and effective manner. While Provincial Courts are statutory in origin and have no inherent jurisdiction, the Supreme Court clarified, at paragraph 19, that they are vested with many of the same powers:
19 Likewise in the case of statutory courts, the authority to control the court's process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law. This Court has affirmed that courts can apply a "doctrine of jurisdiction by necessary implication" when determining the powers of a statutory tribunal:
... the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime ... .
(ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51)
Although Bastarache J. was referring to an administrative tribunal, the same rule of jurisdiction, by necessary implication, would apply to statutory courts.
7In R. v. B.C.S., 2019 ONCJ 467, Justice Latimer (as he then was) found that a Provincial Court judge has the power to appoint counsel for the complainant in the context of a s. 276(2) application. He relied on the doctrine of jurisdiction by necessary implication, as delineated in R. v. Cunningham, supra, R. v. Hynes, 2001 SCC 82 and Ontario v. Criminal Lawyers Association, 2013 SCC 43. He concluded, at paragraph 7, as follows:
I read these rulings as recent reminders of a historical truth: all courts -- superior and inferior -- possess inherent procedural jurisdiction to make orders that are practically necessary to ensure that the proceedings they are statutorily mandated to conduct are administered justly and fairly. The fact that the Superior Court of Justice additionally has inherent substantive authority does not leave a statutory court without the power to make procedural orders that are necessary to control its own process and ensure that justice is done. [Endnotes omitted.]
8Conversely, in R. v. Z.K., supra, Moore J. was not persuaded he had jurisdiction to appoint counsel for the complainant. He declined to follow R. v. B.C.S. and does not appear to have considered himself bound by that decision with respect to the question of law.
9In my view, the earlier decision of R. v. B.C.S. is binding as to the jurisdictional point. In R. v. Sullivan, 2022 SCC 19, the Supreme Court re-defined the doctrine of stare decisis along stricter lines of adherence than what had come before. Kasirer J., writing for a unanimous court, held that a judge at first instance (in that case a Superior Court) should follow prior decisions made by their own court on all questions of law, including questions of constitutional law, unless one or more of the exceptions in Spruce Mills are met: R. v. Sullivan, supra, at paras. 44 & 65. The “Spruce Mills criteria” are set out and explained at paragraph 75 and following:
Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:
The rationale of an earlier decision has been undermined by subsequent appellate decisions;
The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
The earlier decision was not fully considered, e.g. taken in exigent circumstances.
76 First, a judge need not follow a prior decision where the authority of the prior decision has been undermined by subsequent decisions. This may arise in a situation where a decision has been overruled by, or is necessarily inconsistent with, a decision by a higher court (see Rowe and Katz, at p. 18, citing Kerwin, at p. 542).
77 Second, a judge can depart from a decision where it was reached without considering a relevant statute or binding authority. In other words, the decision was made per incuriam, or by inadvertence, a circumstance generally understood to be "rare" (see, e.g., The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd., 2017 BCSC 1988, 4 B.C.L.R. (6th) 370, at para. 132). The standard to find a decision per incuriam is well-known: the court failed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision. It cannot merely be an instance in which an authority was not mentioned in the reasons; it must be shown that the missing authority affected the judgment (Rowe and Katz, at p. 19).
78 Third and finally, a judge may depart where the exigencies of the trial required an immediate decision without the opportunity to consult authority fully and thus the decision was not fully considered. An unconsidered judgment is not binding on other judges (Rowe and Katz, at p. 18, citing Spruce Mills, at p. 592).
79 These criteria define when a superior court at first instance may depart from binding judgment issued by a court of coordinate jurisdiction and apply equally to a prior ruling on the constitutionality of legislation. Where, as here, a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow the most recent authority unless the criteria above are met. In such a situation, the judge must, in determining whether the prior decision was taken per incuriam, consider whether the analysis failed to consider a binding authority or statute relevant to the legal question.
10In the present case, I am faced with conflicting authority from courts of coordinate jurisdiction, as R. v. B.C.S. and R. v. Z.K. are decisions of my own Court. According to Sullivan, I am bound to follow the most recent authority, unless one of the Spruce Mills criteria is met. Since Moore J. declined to follow R. v. B.C.S. on the legal question of whether jurisdiction exists to order state-funded counsel for the complainant, I respectfully conclude his decision was reached per incuriam. Moore J. did not have to make the order, but he was bound by Latimer J.’s earlier decision regarding his jurisdiction to do so, unless that earlier decision was itself invalidated based on the Spruce Mills criteria: see R. v. Sullivan, supra, at paras. 83-84.
11I conclude that Latimer J.’s decision in R. v. B.C.S. has not been undermined by any subsequent appellate decision, was not itself reached per incuriam, and was not taken in exigent circumstances. In my view, it makes no difference that he was presiding as a youth court justice. That distinction could have a bearing on whether the judge decides to exercise their discretion to appoint counsel for the complainant, but it does not give rise to a different jurisdictional analysis. As Latimer J. observed, at paragraph 4 of his decision, “This designation is not presently relevant, as a youth court judge retains the same ‘jurisdiction and powers’ that a provincial court judge would otherwise possess: see YCJA, s. 14(6).”
12As I understand the strictures of the doctrine of stare decisis, both Moore J. and I are bound by that decision. And outside of any considerations of judicial comity, I agree with Latimer J.’s analysis. The rights of complainants to appear, make submissions, and be represented by counsel on a pre-trial motion constitute significant procedural departures. However, it is Parliament which has conferred those rights with the enactment of s. 278.94 of the Code. The appointment of counsel contemplated here is functionally limited to the question of who will provide funding for counsel. As such, I am satisfied that discretion to make the appointment properly falls within the implied jurisdiction of this Court.
13This does not mean such orders should be made automatically upon request in every case. In R. v. T.P.S., 2019 NSSC 48, for example, Nova Scotia Legal Aid had not established a protocol to provide funding for a complainant’s counsel and the Attorney General of that province was not otherwise willing to pay. Where the application is opposed, as it was in that case, a hearing will be required and it will fall to the individual judge to decide whether to exercise their discretion to appoint counsel or not.
14I would also endorse Moore J.’s view that an order of this type should not be made ex parte. The interests of the accused are engaged and he is entitled to make submissions on the application if he chooses: see, also, R. v. M.W., 2026 ONCJ 162.
Application to the Present Case
15No one is opposed to this application. The Ministry of the Attorney General, who will be required to provide the funding, is inviting me to make the order. The Crown Attorney, an agent of the Attorney General, is seeking it.
16Legal Aid Ontario, which administers payment to counsel in these circumstances, is open to receiving court orders appointing counsel in this context. A document entitled LAO Protocol on Court Ordered Funding for Complainants was filed as an exhibit in these proceedings. It provides as follows:
Legal Aid Ontario has long accepted court orders appointing counsel for complainants through this Protocol in appropriate cases. A court order is necessary as it provides that the Ministry will fund the required legal representation, and LAO will manage the case in accordance with its billing and payment rules and process.
The Protocol, and the court orders that flow from it, provide a streamlined process by which complainants can be provided with counsel of choice so they can meaningfully participate in hearings in which they are entitled to participate, without delay and interference from the prosecutorial branch and with proper oversight of the expenditure of public funds for that representation.
17The respondent is also consenting to this application. The defence was given notice of the Crown’s intention to seek an order appointing counsel for the complainant and was given an opportunity to make submissions. Counsel for the respondent agreed that the Court had jurisdiction to make the appointment and consented to the order being made. Importantly, I am not making an order against the interests of any party.
18There is, perhaps, an unusual dynamic here. Moore J. understandably questioned why a court order was needed to compel the Ministry of the Attorney General to do something it is apparently already willing to do. The answer, it seems, is that the existing procedure governing other kinds of court-appointed counsel, including amicus curiae, Rowbotham and s. 486.3 appointments, is simply being adopted here. Those other kinds of appointments are covered by a pre-existing Legal Aid protocol, which in turn engages an agreement whereby the Ministry of the Attorney General provides funding for court-appointed counsel and Legal Aid administers the accounts. The text of the LAO Protocol on Court Ordered Funding for Complainants confirms that the process being suggested here has been grafted onto those existing procedures:
Outlined below is the process for complainants who require representation where the defence is seeking to adduce third party records or prior sexual conduct evidence.
The process is governed by the Protocol for Management of Court-Ordered Publicly-Funded Counsel (Schedule III of Memorandum of Understanding between Legal Aid Ontario and Ministry of the Attorney General, revised April 2014).
The Protocol, while referencing defence counsel and funding for the accused, is also meant to apply to cases where a complainant requires representation regarding third party records, and more recently by virtue of Bill C-51, representation for a sexual assault complainant at admissibility hearings where defence is seeking to adduce evidence of prior sexual activity or use a private record in cross-examination.
19Rather than crafting a separate set of policies and procedures to provide funding for counsel for complainants in sexual assault cases, the Ministry appears to be using an existing apparatus. The court order triggers the protocol, and the judge is effectively invited to perform a limited screening function. As a matter of efficiency, this all makes sense. And I see no reason to stand in the way.
20The statutory regime governing other sexual activity and private records in sexual assault cases is highly complex. Multi-stage hearings have to be scheduled across multiple dates before the trial judge, several weeks or months in advance of the trial. Some or all of the following steps may have to take place in any given sexual assault case: hearings at stage one and stage two of both regimes, cross-examination of affiants, the production of records to the court, review of records in camera, applications concerning the admissibility of records in the possession of the defence, and motions for direction. Application materials must be filed according to the requirements of the various Criminal Code provisions for each of these steps. Some stages involve materials and submissions from the Crown, the defence and the complainant. These procedures are already unwieldy and time-consuming and they are placing significant strain on the justice system. If the Court can exercise its discretion in a manner that increases efficiency, and no one is opposed, there is good reason to do so.
21If complainants are to have standing on these applications, there is value in having counsel appear on their behalf. The legal issues tend to be complex, the subject matter is sensitive, and a high level of experience and skill is required to litigate them effectively. The appointment of counsel for the complainant may well align with the interests of the accused also. Counsel can focus the legal arguments, make reasonable concessions, and generally streamline the litigation for all involved.
22In R. v. Z.K., Moore J. questioned Latimer J.’s reliance on Ontario v. Criminal Lawyers Association, supra, observing that the Supreme Court was considering the power of trial judges to appoint amicus curiae in that case. Moore J. emphasized the constraints the Supreme Court attached to the exercise of that power; namely, that the assistance of amicus must be essential to judges discharging their judicial functions and the authority should be used sparingly and with caution, in response to specific and exceptional circumstances.
23As I read R. v. B.C.S., Latimer J. relied on Ontario v. Criminal Lawyers Association, supra, for the proposition that statutory courts possess what the majority called, "jurisdiction implied by the ability of statutory courts to function as courts of law." He did not treat the appointment of amicus as an analogous exercise of that power to what is contemplated here. And, indeed, there are important distinctions between these two kinds of appointments by the Court.
24The appointment of amicus injects a lawyer into the proceedings who would not otherwise be involved. And, as the Supreme Court observed in R. v. Khasai, 2023 SCC 20 at paragraph 43, the role of amicus can in fact conflict with the constitutional right of the accused to conduct their own defence. The appointment of counsel for complainants is done primarily to secure state funding for a lawyer who already has standing to appear.
25I would also observe that the Supreme Court’s reasoning for limiting amicus appointments in Ontario v. Criminal Lawyers Association, supra, had to do with the separation of powers between the courts and the province. As Karakatsanis J. remarked, at paragraph 47, “Routine appointment of amici because the defendant is without a lawyer would risk crossing the line between meeting the judge's need for assistance and the province's role in the administration of justice.” More specifically, the majority was concerned that the widespread use of amicus appointments would circumvent provincial legal aid schemes, which were otherwise responsible for the allotment of public funds to accused persons: Ontario v. Criminal Lawyers Association, supra, at para. 55. In the present circumstances, where the Ministry of the Attorney General appears willing to provide funding for complainants’ counsel, such appointments do not trench upon the province’s role in the administration of justice. So long as this dynamic remains, and no one is opposed, I would not be concerned if the making of these orders becomes “routine.”
26More broadly, the appointment of counsel for complainants cannot be divorced from the context of sexual violence in our society. All accused persons are presumed innocent and, as such, complainants are not presumed to be victims. But victims exist. And they are not invited into the criminal justice process: they are drawn into it by circumstance and violence. As Latimer J. observed in R. v. B.C.S., supra, at paragraph 9, “the current Code provisions form part of a continuing legal evolution aimed at rooting out discriminatory reasoning that has long operated unjustly towards sexual assault complainants, the vast majority of whom are women: see R. v. C.M.G., 2016 ABQB 368, per Martin J (as she then was); R. v. Barton, 2019 SCC 33, at para. 74.” In my view, the appointment of state-funded counsel to assist complainants in responding to further intrusions into their sexual activity and private records is distinct from other appointments of counsel the Court might be called upon to make.
27There may be cases where the Court declines to appoint counsel for the complainant, even in the absence of any opposition. There might be cases where the legal issues are so exceedingly simple that it would not be in the interests of justice to do so. Other circumstances might arise where the complainant’s position is plainly unreasonable or where their conduct of the litigation is vexatious. I would expect such circumstances to be rare. And it would be even more rare for those circumstances to be discernible at the outset of the litigation when the Court is invited to make the appointment.
28In this case, I am satisfied that it is a proper exercise of my jurisdiction to appoint counsel for the complainant, and to direct the Ministry of the Attorney General to provide funding.
29I am prepared to make the order without an evidentiary record. I would observe that applications of all kinds are made, on consent, without a written application, affidavit, or other evidence. These can include, in appropriate cases, applications to exclude witnesses or impose publication bans, applications for support persons or screens in the courtroom, appearances via remote video technology, and even certain unforeseen applications to adjourn a trial.
Suggested Procedure
30In general, where the application is made outside of court, I would expect the Crown to file a notice of application (indicating the defence position) and to provide a draft order. If the application is on consent, it is open to the judge to make the order without an evidentiary record or in-court hearing. I would suggest it is open to the judge to dispense with the requirement of a notice of application as well. This might be appropriate where the application is made in open court or is addressed in the context of a judicial pre-trial conference.
31Each application must be decided on its merits. And it will fall to individual jurists to decide what materials and procedures are appropriate. But when I consider the challenges facing counsel and the Court in navigating sexual assault cases under the current statutory regime, I see little reason to add more layers of procedure and complexity.
32I would summarize my conclusions surrounding this issue in the following manner:
- The Court has the power to appoint counsel for the complainant, and to direct the Attorney General to provide funding, in the context of applications under ss. 276(2) and 278 of the Criminal Code.
- This power arises according to the doctrine of jurisdiction by necessary implication. It is discretionary in nature and should not be granted automatically upon request in every case.
- The defence should be given notice of the Crown’s intention to seek the order and be given the opportunity to make submissions. The application should not be made ex parte.
- Where the application is made outside of court, a formal notice of application should be filed (indicating the defence position) and a draft order provided. Where the application is on consent, it is open to the judge to make the order without an evidentiary record or in-court hearing.
- The requirement for a formal notice of application may be dispensed with by the presiding judge, for example, where the application is made orally in open court or is addressed with counsel at a judicial pre-trial conference.
Released: April 6, 2026
Signed: Justice Peter N. Fraser