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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
BETWEEN:
HIS MAJESTY THE KING
— AND —
JEFFREY YOUNG
Before Justice S. G. Pratt
Heard on 21 January 2026
Reasons for Judgment released on 21 January 2026
Delia Greco Counsel for the Crown
Jeffrey Young.............................................................................................................. In Person
RULING ON CROSS-EXAMINATION ON VICTIM IMPACT STATEMENTS
1On 18 September 2025 I found the Offender Jeffrey Young guilty of several offences. Sentencing submissions are set to be heard on 22 April 2026. He has brought an application for leave to cross-examine the victims J.S. and J.P. on their Victim Impact Statements (hereinafter “VIS”). The Crown opposes the application. This is my ruling on that issue.
2In support of the application, the Offender has filed written materials. I have reviewed those materials and listened to his submissions. The crux of his argument is that J.S. has exaggerated her claims of impact. In particular, he disputes the fear for her life she says she experiences as a result of the offences. He wishes to cross-examine her on what he says are inconsistencies between her VIS and her trial testimony, as well as inconsistencies with the text messages that form part of the evidence on this trial.
3He repeats multiple times in his materials that if in fact J.S. was truly the victim of what in her mind was a sexual assault, she would not have continued to see him for treatment. She would not have sent the friendly text messages she did. This inconsistency, he says, undermines her credibility and should cause me to view her VIS skeptically. No one who legitimately feared for her life would have acted the way she did.
4The arguments he raises about her continued attendance and friendly texts, and how that conduct detracts from her credibility, were not made at trial. The reason they weren’t is this is an entirely prohibited path of reasoning. The Supreme Court of Canada has been clear in several cases that I cannot consider what I believe the victim of a sexual assault “should have” done. That reasoning extends to how I believe a victim “should feel” in the aftermath of a sexual assault. In any event, J.S. was cross-examined extensively on her entire history with the Offender. I have listened to her evidence and made my assessment of her credibility and reliability. I will not reconsider those issues now, and certainly not based on prohibited reasoning.
5In his materials, the Offender says he does not seek to re-try this case. Respectfully, that is exactly what he wants me to do. He wants to attack J.S.’s credibility and reliability with a wide-ranging cross-examination that will touch on her trial testimony, text messages, and her conduct since he was first charged. He wants to show times when the victim did not tell the whole truth in her testimony that were missed by his prior counsel. Overall, the objective will be to show me that she is not a credible witness. I have already found J.S. to be credible. It is not appropriate for me to revisit that finding, even in the limited context of a VIS. That said, I am of course always free to accept whatever portions of the VIS I believe are relevant, and to disregard any portions that are not. I am free to assign whatever weight I feel is appropriate to any evidence, including the contents of any VIS. The Offender will be permitted to make argument on those points. He does not need cross-examination to enable him to do so.
6If there were avenues of cross-examination that were not pursued by his former counsel at trial, that is a ground of appeal. It is not a reason to permit the unusual step of cross-examination on a VIS.
7The materials also mention the victim J.P. There is no basis set out, neither in the materials nor in submissions, for allowing any cross-examination of J.P. on her VIS.
8The Court of Appeal for Ontario considered cross-examination on VIS in the case of R. v. W.(V.) 2008 ONCA 55, [2008] 89 O.R. (3d) 323. At paragraphs 28 and 29, Justice Sharpe stated:
[28] However, I do not read either Gardiner or s. 724(3) as meaning that an offender has an automatic or open-ended right to insist that victims attend for cross-examination any time the Crown wishes to use a victim impact statement in a sentencing hearing. Nor do I agree that s. 7 of the Charter mandates such a right. Conferring an automatic or unconstrained right to cross-examine would risk undermining the very purpose of victim impact statements, namely, to give victims a voice in the criminal justice process, to provide a way for victims to confront offenders with the harm they have caused, and to ensure that courts are informed of the full consequences of the crime. Conferring an open-ended right to cross-examine might discourage victims from offering such statements and re-victimize those who do. On the other hand, an absolute bar on cross-examination would unduly interfere with offenders' procedural rights.
[29] It seems to me that the way to reconcile the use of victim impact statements with the procedural rights conferred by s. 7 of the Charter, s. 42(9) of the YCJA and s. 724(3) of the Criminal Code is to impose a threshold "air of reality" burden on the offender to satisfy the sentencing judge that a fact or facts contained in the victim impact statement are disputable and that the request to cross-examine is not "specious or empty": see Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) at 198. If there is no factual dispute that meets this low threshold, the protections accorded by s. 724(3) are not triggered and I fail to see how there could be any violation of the appellant's s. 7 Charter rights.
9The test I must apply is whether there is an air of reality to the notion that there is a fact or facts in the VIS that are in dispute, and that the proposed cross-examination would be of value in settling that dispute. If there is no factual dispute, no cross-examination will be permitted.
10This approach recognizes the fundamental difference between VIS and other evidence. VIS are not used to prove elements of an offence. They are not used by the Crown to argue for conviction. They are the personal words of a victim regarding how the offence they have been subjected to has impacted them. That impact can be emotional, physical, or financial. Especially as it relates to emotional impact, the statement is necessarily subjective in nature. There is no objective “emotional impact spectrum” as suggested by the Offender. It is not for anyone, neither myself, nor the Crown, nor the Offender, to dictate how emotionally impacted a victim should be. I accept that there are times when a victim’s stated impact seems objectively disproportionate to the offence they’ve endured. I’ve seen that in other cases. But that misses the point. VIS are of necessity subjective, at least as it relates to emotional impact. It’s an assertion of feeling, not an assertion of fact.
11The W.(V.) decision has recently been cited positively by Justice Monahan in the case of R. v. H.S. [2023] O.J. No. 5442 (C.A.). In that case, His Honour made an observation particularly relevant to the case at bar. This is from paragraph 28:
Parliament's purpose in providing for the introduction of such statements was to give victims a voice in the criminal justice process, to provide a way for them to confront offenders with the harm they have caused, and to ensure that courts are informed of the full consequences of the crime. If victims could routinely be cross-examined based on an alleged inconsistency between their VIS and their trial evidence, they would be discouraged from offering such statements and risk being revictimized through any subsequent cross-examination: R. v. W. (V.), 2008 ONCA 55, 89 O.R. (3d) 323 (C.A.), at para. 28. (Emphasis added)
12The Offender seeks to do precisely what Justice Monahan has warned against.
13Applying the test as set out above, in my view there is no air of reality to a claim that cross-examination is necessary to resolve a disputed fact in the VIS. J.S.’s VIS is almost entirely based on her subjective feelings and reactions to what has taken place. Allowing broad cross-examination would go against the clear direction of the Court of Appeal in W.(V.) and H.S., and risk re-victimizing J.S. all over again.
14If the Offender wishes to lead his own evidence on the financial impact of the damage to the tree, he is free to do so. A dispute over just how much an arborist should have cost is something this Court can resolve without resort to cross-examination on a VIS.
15The application is dismissed.
Released: 21 January 2026
Signed: Justice S. G. Pratt