Warning and Non-Publication Order
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
DATE: 2025-05-16
COURT FILE No.: Toronto 4810 998 23 48127186-00
Between:
His Majesty the King
— AND —
Z.K.
— AND —
A.A.
Before Justice D. Moore
Heard on April 23 and May 15, 2025
Ruling re: Application for Order Appointing Counsel released on May 16, 2025
Counsel:
A. Gibbons — counsel for the Crown
D. Costa — counsel for the Accused Z.K.
J. Khou — counsel for the Applicant A.A.
Reasons of Moore J.
[1] A.A. is the Complainant/Respondent in an application by Z.K. pursuant to s. 278 of the Criminal Code to introduce text/WhatsApp messages in Z.K.’s possession at his trial on the charges of sexual assault (2 counts) and assault.
[2] On January 21, 2025 I signed an order on consent of both the Crown and Z.K. appointing Ms. Khou as counsel for A.A. to represent her at a Stage 2 hearing purportedly pursuant to s. 278.94 of the Criminal Code.
[3] On February 18, 2025 I granted, with the consent of the Crown, Z.K.’s application for a hearing pursuant to s. 278.93 and ordered that the matter would move on to a stage 2 s. 278.94 hearing.
[4] The stage 2 hearing is currently scheduled to be heard May 27, 2025.
[5] On February 23, 2025 Ms. Khou emailed written submissions on the Stage 2 application as well as a request for a further order appointing her as counsel to supplement or clarify my January 21, 2025 “order.” While the Crown was copied on this email, counsel for the defence was not. My judicial assistant advised the parties that as I am the seized trial judge it would not be appropriate for me to make an ex parte order and copied Mr. Costa on that communication.
[6] Mr. Gibbons for the Crown responded that now Mr. Costa had been provided with a copy of the draft order, the Crown joined in Ms. Khou’s request and asked that I sign the order or request that the matter be brought before me for submissions. I directed the latter and requested that submissions be made on two areas: (1) what was my jurisdiction to make the order sought and (2) if I had jurisdiction why was a second order required. I initially heard submissions on those issues on April 23. I expressed that the submissions had not satisfied me that I had jurisdiction to make the order sought and I invited the parties to adjourn the matter to make inquiries as to (a) other possible avenues for A.A. to get funded counsel without an order of the court, (b) whether other interested parties wished to make submissions (in particular the Crown Law Office – Civil or Legal Aid Ontario), and also to do further research to make additional submissions.
[7] On April 25 I received additional submissions from Ms. Khou and was provided with Justice Latimer’s decision in R. v. B.C.S. (2019) ONCJ 467 in support of those submissions.
[8] On May 15 I heard further submissions and dismissed the application with brief oral reasons and indicated I would supplement those reasons with written more fulsome reasons. These are those reasons.
[9] I preface my ruling by stating unequivocally that I am completely in favour of Complainant/Respondents on 276 and 278 applications being represented by counsel. They clearly have the statutory right to standing and to be represented by counsel, but in addition to that I have generally found such representation to be of the highest quality and of great assistance in deciding such applications.
[10] My concern is whether or not I have jurisdiction to make the order sought. I, and I am sure many if not most of my colleagues, have been signing similar orders for several years now. While I am uncertain of the entire history of such orders, it appears that these appointments were simply added to the procedures in place for s. 486.3 and amicus curiae appointments made by the Court whereby pursuant to an agreement between the Attorney General and Legal Aid Ontario the Attorney General funds the cost of these appointments but Legal Aid Ontario administers them. It is possible that the procedure originated with Justice Latimer’s decision in R. v. B.C.S. but I am not certain that this is the case.
[11] The source of jurisdiction is clear in s. 486.3 and amicus appointments: the Criminal Code in the case of the former and the centuries-long recognized inherent jurisdiction of the Court in the latter. The opposite is the case in respect to the order sought here. The order I signed on January 21 purported to be made pursuant to s. 278.4, but s. 278.4 does not provide that the court may appoint state funded counsel for the Complainant/Respondent. It only provides in s. 278.4(3) that the trial judge must make sure the Complainant/Respondent is provided notice of their right to be represented by counsel.
[12] The right to be represented by counsel at a proceeding does not require the provision of state-funded counsel. An accused person has a well-established right to counsel at their trial both at common law and pursuant to the Charter, but that does not mean that I have jurisdiction to appoint state funded counsel for an accused person. Where an accused person wishes state funded counsel to be appointed by the court they must bring an application pursuant to ss. 7 and 24(1) of the Charter under the procedure outlined in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont.C.A.) and somewhat clarified by caselaw in the decades since. On such an application an accused must show (1) that they have exhausted all avenues available to them to obtain legal aid, (2) that they lack sufficient funds to obtain counsel privately, and (3) representation by counsel is essential to a fair trial (see for example R. v. Tang, 2015 ONCA 470, [2015] O.J. No. 3366, at para. 9, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 486).
[13] In R. v. B.C.S., Justice Latimer was presiding as a youth court judge and dealing with a 17 year old Complainant/Respondent and a defendant who was also a young person. He found that he had jurisdiction to make the order based on his “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.” In support of this jurisdiction he relied on the decision of the Supreme Court of Canada in Ontario v. Criminal Lawyers’ Association, 2013 SCC 43, 300 CCC (3d) 137. But it is important to note that in finding statutory courts had the jurisdiction to appoint amicus, it placed important constraints on the exercise of that jurisdiction:
Thus, 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. [1]
[14] I do not believe that Justice Latimer meant for his decision to be relied on as authority that such orders should be made in every case where the Complainant/Respondent has standing. Rather he had a 17 year old Complainant/Respondent who did not yet have counsel and a motion date approximately a month away. Special protections and orders for minors, including the provision of state-funded counsel have a long history, including the Office of the Children’s Lawyer in family proceedings, litigation guardians in civil proceedings, and perhaps most relevant to the issue before Justice Latimer, s. 25 of the Youth Criminal Justice Act.
[15] In any event A.A. is not a minor and I do not find that R. v. B.C.S. provides me with authority for jurisdiction to appoint state funded counsel for Complainant/Respondents as part of my inherent procedural jurisdiction in this case. In an appropriate case I might have jurisdiction under the Charter to do so analogous to the Rowbotham procedure or to use my inherent jurisdiction to appoint amicus to assist me with respect to the Complainant/Respondent’s interests but I do not have a Charter application before me and no one has suggested that an amicus appointment is necessary in this case.
[16] The submissions of the Crown and A.A. in this case are essentially that these orders should be made automatically upon the Complainant/Respondent being granted standing. Indeed past practice has simply been to provide a draft order without a supporting application or affidavit. While that has certainly been past practice (including my own), having looked into the matter more thoroughly it is not a practice I can continue to engage in.
[17] It was certainly open to Parliament when they enacted s. 278.4 to give courts the jurisdiction to order state funded counsel in all cases as they did in s. 486.3. Parliament did not do so. The Attorney General is certainly capable of providing state funded counsel on whatever terms it wishes. While these orders have become common in the past few years, for many years state funded counsel was provided to Complainant/Respondents on O’Connor applications without court orders. There is no need for a court order to compel the Attorney General to do something they are apparently willing to do. The Attorney General could simply direct that funded counsel be provided whenever a Complainant/Respondent is provided notice of a proceeding pursuant to s. 486.4 and let Legal Aid Ontario administer it. The Legislature could enact legislation expressly giving courts this authority, it has not done so. The Executive branch could also expressly give courts this authority, it has not done so.
[18] Having Complainant/Respondents represented by counsel is extremely beneficial to everyone involved in the proceeding. Thankfully it appears Ms. Khou is going to continue representing A.A. I note that this ruling only applies to the application to grant an additional order and does not apply to my January 21, 2025 order since no one has applied to set that order aside.
[19] Although not strictly necessary given my ruling, even if I had been convinced that I had jurisdiction to make the order sought I would not have as it is unnecessary. Essentially it was argued that the wording of the order was insufficient as it did not explicitly refer to s. 276 issues. I was provided with previous instances in which Legal Aid Ontario restricted payment in the past. In my view my previous order was for funding counsel for representation on the application before me. The description was simply to identify the application. There is only one application before me. It is possible (although not likely) that dozens of different legal issues could arise. There is absolutely no reason for a new order each time a new issue arises. It might be different if there was a new application with a new stage 1 ruling, but that is not the case here.
Released: May 16, 2025
Signed: Justice D. Moore
[1] Emphasis added at para. 47 of Ontario v. Criminal Lawyers’ Association, 2013 SCC 43.