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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
CITATION: R. v. R.B., 2026 ONCJ 269 DATE: 2026-05-11 COURT FILE No.: Sudbury 24-40100256-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
R.B.
Before Justice G. Jenner
Application heard on April 14, 2026 Reasons for Judgment released in writing on May 11, 2026
Alayna Jay............................................................................................ counsel for the Crown Michael Venturi…………………………….……………… counsel for the accused, R.B. Cornelia Mazgarean……………………………………counsel for the complainant, J.C.
REASONS FOR JUDGMENT RE: CROWN APPLICATION TO APPOINT COMPLAINANT’S COUNSEL
I. INTRODUCTION
1These are my reasons regarding the Crown’s application to appoint state-funded complainant’s counsel.
2In brief, R.B. is charged with sexual offences involving the complainant, J.C. R.B. is bringing a pretrial application, pursuant to s. 278.3 of the Criminal Code, for production of records from counseling sessions that J.C. attended. J.C. has standing on that application, and a statutory right to be represented by counsel. On April 14, 2026, the Crown applied for an order appointing state-funded counsel for J.C.
3The court’s jurisdiction to grant an order for state-funded complainant’s counsel, as well as the factors to be considered in exercising any jurisdiction, have recently been the subject of judicial debate:
In R. v. Z.K., 2025 ONCJ 273, Moore J. held that the Ontario Court of Justice (OCJ) lacks jurisdiction to make such an order. He distinguished the earlier case of R. v. B.C.S., 2019 ONCJ 467, in which Latimer J. appointed state-funded counsel to represent a child complainant, as lacking general application.
In R. v. Smith, 2026 ONSC 40, [2026] O.J. No. 1426, Braid J. granted a Crown application for certiorari, quashing the decision of an OCJ judge who, following Z.K., had declined a Crown application on jurisdictional grounds. The court concluded that the OCJ may appoint state-funded complainant’s counsel on the basis of the doctrine of jurisdiction by necessary implication, and that Crown applications for such orders should be granted “as a matter of course except in exceptional circumstances when the court is of the opinion that the order would interfere with the proper administration of justice.”
In R. v. B.A., 2026 ONCJ 201, [2026] O.J. No. 1484, released after Smith but without reference to Smith, Fraser J. held that the OCJ has jurisdiction to grant these applications, but observed that they should be determined on a case-by-case basis.
4For the reasons that follow, I conclude I am bound by vertical stare decisis to follow Smith both on the question of jurisdiction and the legal test to be applied in exercising that jurisdiction. Accordingly, I will grant an order appointing state-funded legal counsel for the complainant. That said, I harbour some reservations and note some unresolved interpretive questions arising from Smith’s framework. In my respectful view, the approach taken in Smith,
(i) has developed absent a true live controversy, and without the benefits of the adversarial process;
(ii) is difficult to harmonize with principles of statutory interpretation tending to demonstrate an absence of parliamentary intention to grant jurisdiction, and
(iii) in practice expands the doctrine of jurisdiction by necessary implication to mandate significant and regular provincial spending, which raises questions concerning the separation of powers.
II. CONTEXT
2.1 The statutory scheme and the absence of an explicit provision
5In Smith, the court succinctly outlined the relevant statutory scheme, at para. 9:
For certain sexual offence pretrial proceedings, Parliament has legislated that "the complainant or witness...may appear and make submissions at the hearing" and "the judge shall, as soon as feasible, inform [that complainant or witness] of their right to be represented by counsel." The Criminal Code recognizes the interests of complainants, granting them standing, a right to participate, and a right to be represented by counsel in the following situations:
i. Where the accused seeks production of a private record of a sexual assault complainant or witness pursuant to ss. 278.2(1) and 278.3(1), the complainant's right to be represented by counsel is legislated pursuant to s. 278.4(2.1).
ii. Where the accused seeks to adduce a private record of a sexual assault complainant that is in the possession of the accused pursuant to ss. 278.92(2) and 278.93(1), the complainant's right to be represented by counsel is legislated pursuant to s. 278.94(3).
iii. Where the accused seeks to adduce evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge pursuant to ss. 276(2) and 278.93(1), the complainant's right to be represented by counsel is legislated pursuant to s. 278.94(3).
6The Criminal Code does not explicitly provide for court-ordered state-funded counsel. No party has suggested, and none of the reported cases have held, that the words “right to be represented by counsel” means “the right to have legal representation funded by the state”. Where courts have held that judges have jurisdiction to order state-funded counsel for the complainant, they have grounded this finding in the doctrine of jurisdiction by necessary implication.
2.2 The debate over implied jurisdiction
7In B.C.S., Latimer J. considered a Crown application to appoint counsel for the complainant in a hearing under s. 278.93 of the Criminal Code. The court was advised that the Ministry of the Attorney General (MAG) and Legal Aid Ontario (LAO) structured an agreement whereby LAO would fund complainant’s counsel, but only if a court order was made. The court held it had jurisdiction to make the order based on the court’s implied power to control its own process and the doctrine of jurisdiction by necessary implication.
8The most common phrasing of this doctrine is from the Supreme Court of Canada in ATCO Gas & Pipeline Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51:
... 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...
9B.C.S. relied on Ontario v. Ontario Criminal Lawyers’ Association, 2013 SCC 43, in which the Supreme Court of Canada held that statutory courts have jurisdiction to appoint amicus when necessary to permit a proceeding to be successfully and justly adjudicated. Latimer J. concluded that an order to appoint counsel for the 17-year-old complainant was just to ensure legal representation for all parties in the context of a legal scheme aimed at rooting out discriminatory treatment of sexual assault complainants: para. 9.
10In Z.K., Moore J. observed that the statutory scheme for the pretrial motion before him only required the trial judge to notify the complainant of their right to be represented by counsel. Citing R. v. Rowbotham and the cases that have followed, he held the right to counsel does not, on its own, imply the right to state-funded counsel. Moore J. noted that it was open to Parliament when they enacted s. 278.4 of the Criminal Code, to give courts express jurisdiction to order state-funded counsel, as they did in s. 486.3, but Parliament did not. Moore J. further observed that there was no need for a court order compelling MAG to do something they appeared willing to do. Acknowledging the analogy that B.C.S. drew to amicus appointments, Moore J. noted, at para. 13, that Ontario v. Criminal Lawyers Association of Ontario held that the amicus appointment power was to be used sparingly in exceptional circumstances, to prevent courts from usurping the province’s responsibility for the administration of justice. Z.K. held that B.C.S. should be understood in context and should not be read as broad authority for jurisdiction to routinely appoint state-funded counsel for complainants: paras. 14-16.
11Z.K. was followed by Parry J. in Smith, where the Crown sought an OCJ order appointing state-funded complainant’s counsel.1 After Parry J. dismissed the application on jurisdictional grounds, the Crown applied to the Superior Court of Justice for certiorari (seeking to quash Parry J.’s decision), mandamus (directing the OCJ to reconsider and exercise jurisdiction to appoint counsel), and a declaration that the OCJ has jurisdiction to grant applications appointing state-funded complainant’s counsel. The application judge, Braid J., signed her own order appointing counsel for the complainant, which rendered the mandamus request moot. The court went on to conclude that the OCJ has jurisdiction to appoint complainant’s counsel.
12As in B.C.S., Smith relied on ATCO’s recitation of the doctrine of jurisdiction by necessary implication and drew analogy from the court’s well-recognized power to make amicus appointments.2 Braid J. engaged in a thorough analysis of the purpose of the legislative framework. The court emphasized the Supreme Court of Canada’s observations regarding the gendered nature of sexual assault, a violent assault on human dignity and equality for women: para. 12, citing R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 648-649, and R. v. Osolin, [1993] 4 S.C.R. 595, at p. 669. The court noted, at para. 14, complainants’ rights to privacy and equality under ss. 8, 15, and 28 of the Charter, as recognized in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at paras. 11 and 28, and R. v. Mills, [1999] 3 S.C.R. 668, at paras. 62 and 77.
13Relying on R. v. Barton, 2019 SCC 33, at para. 74, and R. v. J.J., 2022 SCC 28, at para. 138, Braid J. identified the following core objectives of the legislative scheme, at para. 16 of her decision:
(i) Encourage the reporting of sexual offences by protecting the dignity, equality, security, and privacy interests of complainants;
(ii) Recognize the prevalence of sexual violence in order to promote society’s interest in encouraging victims of sexual offences to come forward;
(iii) Promote the truth-seeking functions of trials, including by removing harmful myths and stereotypes;
(iv) Protect the integrity of the trial by excluding irrelevant and misleading evidence; and
(v) Protecting the accused’s right to a fair trial.
14The court made the following findings, at paras. 37-42:
(i) that independent legal representation of the complainant is essential to convey the complainant’s unique perspective on the impact that the admission of the evidence will have on their privacy, dignity, and equality rights;
(ii) that asking complainants to litigate complex and nuanced pretrial applications alone places barriers to participation that are inconsistent with the Supreme Court of Canada’s recognition of ameliorative efforts;
(iii) that orders appointing counsel will permit complainants to meaningfully participate and will ensure that applications are adjudicated fairly and on their merits;
(iv) it would be an injustice if complainants were unable to meaningfully exercise their right to be represented by counsel to protect their interests; and
(v) if the court does not make orders appointing counsel, a complainant would be required to pay for a lawyer or reveal private financial information and apply for Legal Aid in order to protect her rights to privacy and dignity.
15The court concluded that the OCJ has inherent procedural jurisdiction to appoint counsel for the complainant, and went on to observe that
…orders to appoint counsel for a complainant should generally be made as a matter of course, except in exceptional circumstances when the court is of the opinion that the order would interfere with the proper administration of justice.
16In B.A., released after Smith but without, it appears, the benefit of receiving submissions on Smith, Fraser J. came to a similar conclusion on jurisdiction. He held that the OCJ has jurisdiction flowing from the doctrine of jurisdiction by necessary implication. He determined that, applying the doctrine of horizontal stare decisis, he was bound by the decision in B.C.S. (and that Moore J. erred in Z.K. by not concluding the same). Fraser J. went on to observe, however, that the court’s jurisdiction to make orders appointing complainant’s counsel does not mean such orders should be made automatically. A hearing should be held, and it would fall to the individual judge to decide how to exercise their discretion.
III. ANALYSIS
3.1 Smith binds me on the questions of jurisdiction and discretion
17As a decision of a court of superior jurisdiction, Smith binds me on the issue of jurisdiction by operation of vertical stare decisis: R. v. Comeau, 2018 SCC 15, at para. 26.
18With respect to how that jurisdiction should be exercised, the question of whether Smith is binding is more nuanced. The guidance provided by Smith as to the exercise of discretion, including what factors to consider or what test to apply, is perhaps technically obiter dicta, given that the court in Smith had already made its own order appointing counsel and was not required to consider the Crown’s initial request for mandamus.
19In my view, however, form must give way to substance. The court’s reasons for concluding there is OCJ jurisdiction strongly convey that the jurisdiction arises not from the particular circumstances of the complainant or the charges, but categorically flowing from the objectives of the scheme. Moreover, while I have not been provided with a transcript of the court’s reasons when it issued its own order appointing counsel, I think it fair to conclude Braid J. was applying the same standards cited in her later guidance. I view myself as bound by Smith’s statements of the law in that regard.
20Smith’s statements of the law on the question of discretion appear in two places. First, at para. 43, the court states it is open to the OCJ judge to make the order appointing counsel that is practically necessary to ensure that the proceedings are administered justly and fairly. Later in the reasons, any discretion is significantly narrowed. At para. 51, the court concludes that these orders “should generally be made as a matter of course, except in exceptional circumstances when the court is of the opinion that the order would interfere with the proper administration of justice.” I accept para. 51 as the definitive statement of the approach to be taken and consider myself bound by it unless instructed otherwise by a court of superior jurisdiction.
21I have more to say about Smith’s narrow exception later in these reasons, but I can readily conclude the exception has no application in this case. I am unable to say that making an order appointing counsel for the complainant, J.C., would interfere with the proper administration of justice. I will, therefore, issue the order. The order will name counsel specifically, as proposed counsel has been acting in a pro bono capacity and participated in this application. The order will simply impose the obligation to fund counsel on the Attorney General (Ontario), as LAO was not served and there is no basis to bind that independent agency. If the Crown and complainant’s counsel are unable to resolve any dispute over fees and disbursements, they may apply to the court for direction.
22In the balance of these reasons, I will register my concerns with the implications of the Smith approach, and close with practical expectations for future applications. These sections are not necessary to my disposition but explain why future appellate guidance may be warranted.
3.2 The jurisprudence is developing without a true adversarial dispute
23I do not suggest that the present application is moot in the strict sense. The application before the court is a real one. But the principles that underlie the doctrine of mootness are nonetheless instructive here. Courts generally decline to decide cases which raise merely hypothetical or abstract questions in the absence of a live controversy: Borowski v. Canada, [1989] 1 S.C.R. 342, at para. 15. The rationales for this stance include (1) that courts’ competence to resolve legal disputes is rooted in the adversarial system, which helps to ensure that issues are fully argued by parties with a stake in the outcome; (2) judicial economy; and (3) sensitivity to courts’ role as the adjudicative branch, and the need to be cautious about intruding into the ambit of the legislative branch: Borowski, at paras. 31 and 34.
24On the question of the OCJ’s jurisdiction to appoint state-funded complainant’s counsel, the jurisprudence is developing absent true live controversy. Courts are being presented with live requests, to be sure, but those requests do not purport to resolve an actual dispute between the parties. The Crown has not advanced an evidentiary foundation for a need for the court’s process to be engaged when the province has already agreed to fund complainant’s counsel. In every reported case, it is the Crown, and not the complainant, that is the applicant. In none of the reported cases has any party opposed the appointment of state-funded counsel or the making of the order. It appears that, with frequency and consistency across the province, the Crown is asking the court to make unopposed orders requiring it to do something it has the capacity and willingness to do.
25This is an anomalous circumstance. In my view, courts should be wary of permitting their resources to be engaged to bind parties to do what they have the capacity and a willingness to do. In the application before me, there is no evidence suggesting an impediment to MAG funding complainant’s counsel absent a court order. There does not appear to have been any such evidence before the courts in the cases I canvassed. If there was, it has not been the subject of any judicial comment, nor has it factored into any reported reasons. What can be gleaned from the jurisprudence is that an interagency protocol exists between MAG and LAO that has, for reasons not explained in the record, incorporated the obtaining of a court order.
26Before Latimer J. in B.C.S., the Crown made representations that MAG and LAO have structured an agreement wherein LAO will provide funding to complainants who wish to exercise standing, but only subject to a court order. In B.A., a document entitled ‘LAO Protocol on Court Ordered Funding for Complainants’ was filed as an exhibit, and 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.
27In Smith, at para. 26, the court quotes from a 2019 letter from LAO containing the identical second paragraph just quoted. I share the view expressed in Z.K. that it appears very likely that a court order was incorporated to mirror existing processes and protocols in place for amicus appointments or for statutory appointments, as for example, under ss. 486.3 or 672.24 of the Criminal Code, or s. 25 of the Youth Criminal Justice Act.
28These observations help explain how the protocol may have developed, but do not, without more, explain why a judicial order is legally necessary as opposed to administratively convenient. That the court seems to have been incorporated into this process by historical quirk and an interagency agreement—which does not have the force of law—rather than legal necessity, sits uneasily with me. Respectfully, courts ought to be wary of accepting jurisdiction over substance as a result of having been mentioned in the private agreement between other entities, public or private.
29It bears emphasizing that court orders are not invitations. They must be followed, and non-compliance carries significant legal jeopardy. The questions of whether Parliament intended that a court may order a provincial government to fund complainant’s counsel, and under what circumstances, are serious legal questions that engage the separation of the judicial, legislative, and executive branches of government. I fear that by accepting these applications as presented, courts are (i) considering these important issues without the benefit of a true adversarial record, and (ii) allowing their finite resources to be engaged as an arbitrary step in an executive branch administrative programme that does not require adjudication of a genuine dispute.
3.3 Concerns regarding the separation of powers and the expansion of the doctrine of jurisdiction by necessary implication
30My first reservation was procedural. My second is substantive. Although the issue has not yet been tested in an adversarial setting, Smith has articulated a jurisdictional and practical framework that I am obliged to apply. In those circumstances, and with respect, I consider it appropriate to identify the interpretive concerns that framework raises.
Positioning the doctrine of necessary implication within the broader exercise of statutory interpretation
31Both Smith and B.C.S. draw on the standard articulation of the doctrine of jurisdiction by necessary implication from para. 51 of ATCO, which I will repeat for convenience:
... 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...
32The doctrine of jurisdiction by necessary implication is not, however, a monolith. It operates within the greater context of statutory interpretation. The quotation from ATCO, above, is immediately prefaced by the following instruction:
The mandate of this Court is to determine and apply the intention of the legislature (Bell ExpressVu, at para. 62) without crossing the line between judicial interpretation and legislative drafting (see R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 26; Bristol-Myers Squibb Co., at para. 174).
33This preface hearkens both to the separation of powers, and to the modern approach to statutory interpretation: that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21. In fact, in ATCO, the court rejected an argument based in the doctrine of jurisdiction by necessary implication, because it could not stand up to contextual scrutiny. See also R. v. Fercan Developments Inc., 2016 ONCA 269, [2016] O.J. No. 1925 (C.A.), para. 47, where the Court of Appeal for Ontario reaffirms that as in any statutory interpretation exercise, courts applying the doctrine of jurisdiction by necessary implication must consider legislative context.
Parliament knows how to legislate a counsel-appointment and counsel-funding scheme
34An important feature of the context here is that Parliament has been very specific about counsel-appointment clauses in the past.
35Parliament is presumed to adopt straightforward expression, to use consistent patterns of expression, to have a mastery of existing common law and statute law, and to know the circumstances surrounding the adoption of new legislation: Re Medical Centre Apartments Ltd. and City of Winnipeg, at p. 542; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, at para. 74; Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113, at paras. 64-65; Canada v. Antosko, [1994] 2 S.C.R. 312, at p. 332; ATCO, at para. 59.
36When enacting the schemes presently at issue, Parliament is presumed to know that the statute book uses clear language elsewhere to signal an intention that courts make orders appointing counsel. Parliament is aware that:
(i) In s. 486.3 of the Criminal Code, Parliament has prevented the direct cross-examination of certain witnesses by a self-represented accused and has employed explicit terms that “the judge or justice shall appoint counsel to conduct the cross-examination.”
(ii) In s. 672.24 of the Criminal Code, Parliament has required that where the court has reasonable grounds to believe an accused is unfit to stand trial and the accused is not represented by counsel, “the court shall order that the accused be represented by counsel.” Further, there is an explicit term requiring that where legal aid is not granted, the fees and disbursements shall be paid by the Attorney General to the extent that the accused is unable to pay them: s. 672.24(2).
(iii) In s. 25 of the Youth Criminal Justice Act, Parliament has directed that when a young person facing trial wishes to obtain counsel but is unable to do so, the court must refer the young person to available legal aid programs. If none is available or the young person cannot obtain counsel through the program, then the court “may, and on the request of the young person, shall, direct that the young person be represented by counsel”: s. 25(4). When that direction is made, “the Attorney General shall appoint counsel, or cause counsel to be appointed, to represent the young person”: s. 25(5).
37That Parliament has these appointment clauses in its lexicon, and did not use some version of them, is strong evidence that it did not intend to grant courts the power to appoint complainant’s counsel funded by the state.
Parliament knows that state-funded counsel appointments are traditionally means-tested
38In the absence of clear provisions in a statute, Parliament is presumed not to intend to depart from established principles, practices, or policies: Parry Sound (District) Social Services Administration Board v. Ontario Public Services Employees Union, 2003 SCC 42, [2003] 2 S.C.R. 157, at paras. 39-40; R. v. W. (D.L.), 2016 SCC 22, at para. 21. Parliament is equally aware that when making an order requiring the state to fund a party’s counsel, legislation and Charter jurisprudence have generally required that the court consider the party’s means.
39As Z.K. recognized, where an accused person asks for state-funded counsel to be appointed by the court, they must show they have exhausted all avenues available to them to obtain legal aid; that they lack sufficient funds to obtain counsel privately; and that representation by counsel is essential to a fair trial: Rowbotham, at para. 167. In New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, the Supreme Court of Canada held that parents, who clearly have a right to retain counsel to assist them in child protection litigation, are only entitled to state-funded counsel if they show their s. 7 Charter interests require it, which requires a case by case assessment of the complexity of the issues, the capacities of the litigant, and the litigant’s financial means: para. 2.
40In the statutory context, s. 25 of the YCJA provides that before the young person is eligible for state-funded counsel, they must show that they have been unable to obtain counsel. Where counsel is appointed for the potentially unfit accused pursuant to s. 672.24 of the Criminal Code, the Attorney General is only responsible for counsel’s fees or disbursements “to the extent the accused is unable to pay them.” Section 486.3 is distinct in that it makes no provision for the accused to contribute, but that provision is unique in the sense that counsel is imposed on the accused for reasons unrelated to the accused’s own interests.
41I am not suggesting that Parliament, or indeed provincial legislatures, could not legislate that state-funded counsel be means-independent. Of course they can. Nor am I suggesting that requiring complainants to fund their own representation is good policy. There are obvious reasons to criticize such a policy; see Smith at paras. 38 and 42. I am simply emphasizing that there is a tradition for the state to fund a participant’s lawyer only when that participant lacks the ability to retain counsel themselves, and one would expect a departure from that tradition to be stated explicitly in the statute, rather than inferred from statutory objectives alone.
The Smith approach will in practice amount to a federally imposed provincial spending programme, imposed by implication only
42A further contextual concern arises when the Smith approach is viewed through the lens of federalism. If Smith is applied in practice as an automatic or near-automatic requirement to appoint state-funded complainant’s counsel, then it operates as an ongoing provincial funding obligation imposed by the federal government by implication only. This, in my view, cuts against the reasonable expectation that Parliament would use clear terms to impose such an obligation on another order of government.
43Though time will tell, it appears to me that Smith’s exception—that orders be made as a matter of course unless the order would “interfere with the proper administration of justice”—will amount in practice to no exception at all. As Smith recognizes, legal representation of the complainant significantly advances Parliament’s objectives and helps to protect the complainant’s rights to dignity and privacy. And, as my colleagues have recognized and I echo, complainant’s counsel greatly assists the court in deciding applications. I cannot intuit a circumstance in which I would find that making an order appointing counsel would interfere with the proper administration of justice.
44But whether Smith results in the universal or near-universal appointment of complainant’s counsel, in either case the approach mandates a significant and regular government spending programme. The record before me does not include statistics on the number of pretrial applications engaging the complainant’s standing or right to be represented by counsel. I am nonetheless prepared to take judicial notice that such applications arise with great frequency.
45Because the provinces are constitutionally responsible for the “Administration of Justice in the Province” (Constitution Act, 1867, 30 & 31 Vict, c. 3, s. 92(14)), or perhaps because prosecutions of sexual offences are almost universally undertaken by the provincial Crown, that spending programme draws from the provincial treasury. In this way, the Smith approach sees the federal government binding the provincial Crown on a regular course of expenditure.
46The federal government is constitutionally permitted to enact laws which bind the provincial Crown: Alberta Government Telephones v. C.N.C.P Telecommunications, [1989] 2 S.C.R. 225, at p. 275. Whether they should be held to have done so by implication is a different question. The presumption of Crown immunity, developed at common law, and partially entrenched by s. 17 of the Interpretation Act, RSC 1985, c I-2, stipulates that no enactment affects the Crown’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment: see also R. v. Eldorado Nuclear Ltd., [1983] S.C.J. No. 87, at paras. 7-18. The presumption can be subject to the necessary implication doctrine: Eldorado Nuclear, at para. 8. In my view, however, where the court is being asked to infer an intention to impose a fiscal responsibility on another order of government, the court should apply caution.
47Put another way, if Parliament intended that by enacting ss. 278.4(2.1) and 278.94(3), it was also relying on its substantive and procedural criminal law powers (Constitution Act, 1867, s. 91(27)) to mandate provinces to supply and maintain regular expenditures for complainants’ counsel, would Parliament not have every reason to be clear and explicit?
48These contextual considerations should inform any application of the doctrine of jurisdiction by necessary implication.
The Smith approach expands the doctrine of jurisdiction by necessary implication in its engagement of the public purse
49Smith relies on several authorities, in addition to ATCO, to support the application of the doctrine of jurisdiction by necessary implication. None of the authorities, however, involved engaging the public purse in a regular and significant spending programme. R. v. Cunningham, 2010 SCC 10, confirms a provincial or territorial court’s jurisdiction to refuse counsel’s request to be withdrawn from the record. R. v. Dunstan, 2017 ONCA 432, confirms a court’s jurisdiction to make an order permitting a party, with an appropriate evidentiary foundation, to employ a high-quality microphone to record a witness’s testimony, so that it could be available to the requesting party’s spectrographic voice analysis expert. R. v. Samaniego, 2022 SCC 9, confirms a court’s jurisdiction to manage the conduct of trials, including by restricting cross-examination that is unduly repetitive, rambling, argumentative, misleading, or irrelevant.
50Looking beyond the authorities cited in Smith, I have not encountered any cases that have relied on the doctrine to mandate a broad and recurring government expenditure: see Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis Canada Inc., 2022), at p. 376, for a review of this body of jurisprudence. The only cases I am aware of that create a direct expenditure burden on the government do so not as a matter of routine, but in response to exceptional circumstances. For example, in Fercan Developments, at para. 49, the doctrine of jurisdiction by necessary implication was relied on by the Court of Appeal to hold that a forfeiture application judge had the power to make a costs order against the Crown. The court held, however, that costs awards were only to be made where there has been a flagrant and marked unacceptable departure from a prosecutorial norm, a “stringent standard.”
51In my view, the explanation for the apparent absence of any cases inferring and imposing routine government spending lies in the separation of powers and the need for courts to avoid usurping the legislative function. That aspect of the doctrine of jurisdiction by necessary implication is best illustrated by the Supreme Court of Canada’s decision in Criminal Lawyers Association. The case relies on the doctrine to permit a court to engage public resources to fund amicus counsel, but in response to exceptional circumstances, rather than as part of a broad and regular practice. The Supreme Court observed as follows, at para. 47:
…orders for the appointment of amici do not cross the prohibited line into the province's responsibility for the administration of justice, provided certain conditions are met. First, the assistance of amici must be essential to the judge discharging her judicial functions in the case at hand. Second, as my colleague Fish J. observes, much as is the case for other elements of inherent jurisdiction, the authority to appoint amici should be used sparingly and with caution, in response to specific and exceptional circumstances (para. 115). 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.
[Emphasis added.]
52I am concerned that Smith’s reliance on Criminal Lawyers Association omits key elements. It seizes on the objective-advancing features of state-funded complainant’s counsel but does not directly address the doctrine’s critical limits respecting the separation of powers. The practically automatic approach required by Smith risks departure from the sparing and cautious approach required by the Supreme Court of Canada to avoid usurping the province’s role in the administration of justice.
53This danger is recognized in [R. v. N.K., [2021] N.S.J. No. 482 (S.C.)], at paras. 27-31, in which a complainant/witness who did not qualify for funding under the province’s victim services programme applied for court-ordered funding. That programme reserved funding for cases pertaining to certain types of private records. The court, in rejecting the application, observed that Nova Scotia had already made a policy choice about when it will fund counsel for sexual assault complainants through its programme. Ordering state-funded counsel in an individual case would improperly override provincial policy decisions. Absent clear constitutional, statutory, or jurisprudential authority—and compelling case‑specific circumstances—the court held it would be inappropriate for a court to order state-funded counsel.
A lowered threshold for ‘necessity’
54Earlier in these reasons, I set out Smith’s assessment of the statutory scheme objectives. I wholly agree with that assessment. I also agree that the objectives are furthered by the provision of state-funded counsel. Specifically,
(i) legal representation for the complainant assists them in conveying their unique perspective concerning the impact of the court’s determination on their privacy, dignity, and equality rights;
(ii) asking complainants to litigate complex issues without the assistance of counsel presents a barrier that discourages participation and could undermine the scheme’s efficacy; and
(iii) the assistance of counsel permits meaningful participation and promotes the fair adjudication of the issues.
55While state-funded complainant’s counsel undoubtedly advances each of these objectives—and often does so in a concrete and meaningful way—advancement of statutory purpose is not the same as necessity in the sense contemplated by ATCO and the doctrine of jurisdiction by necessary implication. The scheme remains capable of functioning, and of being adjudicated fairly, in the absence of routine appointment of state-funded counsel. The scheme may operate less effectively, and with greater burden on complainants, without state-funded counsel, but it is not rendered ineffective or unworkable. This distinction matters. The doctrine of necessary implication is engaged only where a power is practically indispensable to the court’s ability to carry out the statutory mandate entrusted to it, not where the power would improve outcomes, reduce hardship, or better realize legislative aspirations. Conflating those concepts risks transforming a doctrine rooted in necessity into one driven by policy preference, and risks crossing the constitutional boundary that confines courts to interpretation rather than policy design.
56The idea of complainants being required to pay for counsel themselves no doubt rests uneasily with many, as it did with the court in Smith (see para. 42). But the same might be said for accused persons, who enjoy the presumption of innocence, and in particular, vulnerable subsets of accused persons, like young persons and those who may be unfit to stand trial, all of whom are entitled to state-funded counsel only to the extent they lack the means to retain counsel themselves. Complainants are of course uniquely placed. My point is only that there will be differing views about when it is appropriate for justice system participants to have state-funded counsel. Legislatures and governments, not courts, should decide.
57Smith placed emphasis on the Supreme Court of Canada’s calls to action in Barton and J.J. In my view, however, those important challenges are directed squarely at how judges adjudicate within the existing legal framework. In Barton, the court underscored the judiciary’s responsibility to address biases, prejudices, and stereotypes, particularly in sexual assault cases involving Indigenous complainants, through rigorous evidentiary control, accurate jury instructions, and active trial management: paras. 195–202. That same methodological focus is reiterated in J.J., where the Court upheld Parliament’s reforms while emphasizing that trial judges remain the central constitutional safeguard, tasked with careful screening, proportional reasoning, and disciplined application of existing legal tools to protect trial fairness. I do not view the Supreme Court’s comments in either case as inviting judges to step outside of their institutional roles to introduce new policy, even where doing so would clearly advance the legislative reform objectives. It is for governments to respond to calls to action in that way. Ontario’s voluntary executive action in funding complainant’s counsel is one such policy response, and it is most welcome.
Conclusion re: statutory interpretation
58Despite the clear benefits of state-funded complainant’s counsel, it is by considering,
(i) the absence of an express textual intention,
(ii) the presence of clear statutory appointment powers elsewhere in the Criminal Code and related legislation,
(iii) the legal tradition of engaging state-funding only to the extent participants have financial need,
(iv) the need for caution in determining whether the federal legislature intended to mandate provincial spending, and
(v) the “prohibited line” identified by the Supreme Court of Canada protecting the province’s mandate in the administration of justice,
I am concerned about the inference of a parliamentary intention to mandate provincially-funded complainant’s counsel as a matter of routine.
59In particular, the approach in Smith raises recurring questions about how the doctrine of jurisdiction by necessary implication should be applied where the practical effect is to authorize (and, in practice, require) regular public expenditure, and how that doctrine is to be reconciled with the separation of powers. In my respectful view, further appellate guidance would assist trial courts in considering requests of this nature consistently, transparently, and within proper institutional limits.
No obstacle to circumstance-driven appointments
60My concerns above should not be read as opposition to appointment of complainant’s counsel on a case-by-case basis. I agree with the observation in Z.K., at para. 12, that in an appropriate case a complainant may assert that in their particular circumstances state-funded counsel is necessary to protect one or more of their Charter rights. Such an application would be akin to a Rowbotham application brought by an accused, or a GJ application brought in the child protection context. In a case with a particularly vulnerable complainant, as in B.C.S., it may be appropriate for a court to canvas such an order on its own initiative. I note that in Nova Scotia, in circumstances where a provincial funding programme does not exist, court orders have been considered on a case-by-case basis, with reference to complainant’s Charter-protected interest, but also their personal and financial circumstances: see, for example, R. v. T.P.S., 2019 NSSC 48.
IV. FURTHER OBSERVATIONS
61If the status quo of a Crown application for a court order is maintained, there should be some minimum expectations as to the application’s form and content. Too often the court simply receives a draft order paired with a request from the Crown; sometimes in open court, other times via email through the judicial secretary. This latter practice causes me concern with respect to s. 650 of the Criminal Code’s requirement that an accused be present for the entirety of their trial. The information provided rarely indicates whether the complainant is aware of and supportive of the Crown’s request. It would be inappropriate for me to assume a complainant wishes to exercise their right to participation or representation, or that they are satisfied with the contents of the Crown’s draft order. The requests are also typically not served on LAO, an independent agency, despite the typical draft order’s engaging that agency’s apparatus.
62I cannot speak for my colleagues, but my own expectation is that Crown applications to appoint state-funded complainant’s counsel will be made by serving a Form 1 Notice of Application on the complainant, the accused, and any independent agency that the Crown seeks to bind with the order. The application should be returnable and addressed on the record, and the record should contain some evidence that the complainant wishes to retain counsel. If counsel is specifically named, some information or evidence should be included to indicate the complainant’s informed choice.
63Whether this process is more desirable or efficient than revisiting the MAG/LAO protocol for the release of funds to complainant’s counsel is for the Ministry of the Attorney General to assess.
Released: May 11, 2026
Signed: Justice G. Jenner
Footnotes
- The decision of Parry J. is not reported.
- Both B.C.S. and Smith note as well that Rule 4.1 of the Criminal Rules of the Ontario Court of Justice authorizes the court to make any orders “that would assist in ensuring that it is conducted in accordance with the fundamental objective” of the Criminal Rules, which is to ensure that proceedings are dealt with justly and efficiently. Smith observes, however, that Rule 4.1 is not a free-standing source of authority and does not itself confer jurisdiction: see paras. 39-40; see also B.C.S. at paras. 7-8.