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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Publication prohibited

• 278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

o (a) the contents of an application made under subsection 278.93;

o (b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

o (c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

o (d) the determination made and the reasons provided under subsection 278.94(4), unless

▪ (i) that determination is that evidence is admissible, or

▪ (ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

Offence

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

Approved for Publication: s. 278.95(1) of the Criminal Code

ONTARIO COURT OF JUSTICE

DATE: 2026 02 12

COURT FILE No.: Barrie #24-38103066

BETWEEN:

HIS MAJESTY THE KING

Applicant & Respondent

— AND —

J.M.

Respondent & Applicant

Before Justice C.A. Brannagan

Heard on 20 January 2026

Reasons for Ruling on Crown Extrinsic Discreditable Conduct Application

& Defence Stage One (s. 278.92/.93) Application

Approved for Publication: s. 278.95(1) of the Criminal Code

Ms. K. Smyth...………………………………………………………. counsel for the Crown

Ms. A. Banister-Thompson.………………………………………counsel for the Defence

C.A. Brannagan J.:

I. OVERVIEW

[ 1 ] J.M. is the Defendant and K.B.R. is the Complainant on a single Information alleging historical allegations of sexual assault (choking), assault, and voyeurism, contrary to ss. 272(1)(c.1), 266, and 162(1) of the Criminal Code .

[ 2 ] The allegations arise in the context of a failed marriage and a bitter separation between the two parties.

[ 3 ] The chronology of how J.M. came to be charged can be found in my Reasons for Ruling on J.M.’s Stage One Mills (s. 278.3) Application: see R. v. J.M. , 2026 ONCJ 2 , at paras. 1-2 & 10-17 . For the purposes of this Ruling, it is relevant that K.B.R. provided a statement to police on August 21, 2024, which resulted in the charges before this court.

[ 4 ] K.B.R.’s police statement was filed at Tab 2, Exhibit ‘A’, to the Applicant’s Amended Application Record on J.M.’s Mills Application, which is sealed Exhibit #3 on that proceeding. It was re-filed as part of this Application, as part of sealed Exhibit #1.

[ 5 ] The Complainant’s statement is 54 pages in length. For the first 14 pages, K.B.R. complains to police about what the Defence calls “relationship grievances”, unrelated to the alleged unlawful acts for which J.M. faces criminal liability.

[ 6 ] The Crown takes a different view. Acknowledging that these various events are not strictly related to any of the criminal charges faced by J.M., the Crown seeks to have this prior discreditable conduct admitted into evidence to establish background, context, and narrative.

[ 7 ] J.M. resists the Crown’s prior discreditable conduct application. In turn, he seeks to have admitted at trial various documents from the parties’ Family Law proceedings, and close to 200 pages of mostly mundane text messages, which he claims are “relevant to [K.B.R.’s] credibility and to demonstrate a counter-narrative to how [she] has portrayed the relationship.” That Application is brought pursuant to ss. 278.92 and 278.93.

[ 8 ] Both the Crown and Defence in their respective responding materials resist the other’s application, in part, on the basis that allowing their adversary’s application would result in an unfocused trial that would perpetuate groundless myths and stereotypes.

[ 9 ] Given the interrelated nature of these applications, this Ruling addresses both.

II. THE CROWN’S PRIOR DISCREDITABLE CONDUCT APPLICATION

i. The Extrinsic Discreditable Conduct Evidence

[ 10 ] In her statement, K.B.R. alleged the following about J.M.:

a) He yelled at her and called her derogatory names;

b) He was controlling (e.g., by regulating who her children could have in the house; by monitoring how often the garage door was open; by controlling the finances and failing to pay child support; by taking her car key when he left for work; by not permitting her to find friends; by watching cameras in the house; by not allowing her to contact her children; by going through her phone and by throwing water in her face to take her phone);

c) He damaged items in the house; and,

d) He got into arguments with K.B.R.’s daughter and called her a “bitch”.

ii. Proposed Relevance for the Discreditable Conduct Evidence

[ 11 ] The Crown submits that this evidence is relevant for the following reasons:

a) To prove J.M. had the requisite mens rea to commit the alleged offences, through proof of motive and/or animus towards K.B.R.;

b) To establish the background/narrative between the parties in the context of their intimate partner relationship; and,

c) To explain K.B.R.’s failure to leave the relationship or report the alleged abuse sooner than she did.

[ 12 ] In oral submissions, I questioned the Crown about how, on the specific factual allegations of this case, any of the extrinsic discreditable conduct allegations could materially impact upon the court finding that J.M. had the requisite mens rea to have committed any of the three offences. The Crown fairly acknowledged the frailty of that submission in respect of these case-specific allegations.

[ 13 ] To the argument that this evidence would explain K.B.R.’s failure to leave the relationship or report the alleged abuse sooner than she did, I reminded the Crown that it would be an error in law for me to find that a delay in reporting, without more, is inconsistent with how a “real” victim would behave. Indeed, I specifically adverted to that point of law in my Ruling on the Stage One Mills Application, at paragraph 61.

[ 14 ] The Crown therefore focused on the background/narrative relevancy argument. Boiled down to essentials, the Crown submits that although this type of evidence is presumptively inadmissible, it is not uncommon for it to be admitted in intimate partner violence cases to furnish relevant background information about the parties.

[ 15 ] The Crown submits that relevance and probative value are rooted in the ability of such evidence to put the events into context; for example, that K.B.R. feared J.M. due to his alleged abusive or oppressive conduct may be relevant to explaining why she tolerated sexual abuse or delayed her complaint.

[ 16 ] In furtherance of this point, the Crown relies on R. v. S.K. , 2025 ONCA 149 , which is said to stand for the proposition that evidence of a history of controlling behaviour in a domestic context may be relevant where the complainant’s acquiescence during sexual activity was informed by fear.

[ 17 ] The Crown submits that the extrinsic discreditable conduct alleged in this case is probative of the “live conduct” (i.e., the material issues at trial) if it renders it more probable that the “live conduct” is true: R. v. Chizanga , 2024 ONCA 545 , at paras. 21-26 , aff’d at 2025 SCC 9 .

iii. The Defence Position on the Extrinsic Discreditable Conduct Application

[ 18 ] The Defence opposes the Crown’s Application. It submits that the proposed evidence “consists of vague and unparticularized allegations of verbal abuse, controlling behaviour, property damage, and a confrontation with a third party.”

[ 19 ] The Defence further submits that the extrinsic discreditable conduct alleged is “neither temporally proximate nor factually similar to the charged offences and is not connected to any live issue at trial.”

[ 20 ] J.M. submits that, in addition to being presumptively inadmissible, any probative value would be minimal, and would be substantially outweighed by its prejudicial effect, risking impermissible propensity reasoning and an unfocused trial.

[ 21 ] To the Crown’s three purported uses for this evidence, the Defence submits:

a) Motive/ Animus : citing to Justice Boswell in R. v. D.P. , at paragraph 28 , J.M. relies on the following statement in support of his submission that the Crown’s application falls short of articulating any type of history of animus towards K.B.R.:

If the nature of the relationship demonstrates that the Defendant historically acted with animus towards the Complainant in defined circumstances and if the circumstances of the charged conduct is sufficiently similar, then the evidence of prior disreputable conduct may have significant probative value.

b) Background/Narrative : The Defence submits that there is nothing about these incidents that assists with the narrative or context, but instead the Crown is attempting to rely on this basis “as a catch-all justification” to admit discreditable conduct. J.M. submits that the Crown “has simply taken every bad thing that the Complainant has said about the accused and attempted to have it admitted at trial.” Admitting this evidence would lengthen the trial and divert attention from the live issues the court must decide. This evidence is overly broad, prejudicial, and lacks any real rationale to the charged conduct.

c) Delay in Reporting : The Defence does not seek to undermine the Complainant’s credibility by suggesting that she should have left the relationship or reported the allegations any sooner than she did. Instead, the Defence claims that the relevance of any delay in making these allegations arises in conjunction with other pivotal times in the relationship. I have already addressed this issue in my Ruling on the Stage One Mills Application, at paragraphs 56-65.

III. THE DEFENCE’S APPLICATION UNDER SECTION 278.92/.93

i. The Records in J.M. ’s Possession

[ 22 ] J.M. applies to have admitted at trial Family Law materials concerning he and K.B.R., along with text messages between the parties.

[ 23 ] The Defence submits that the Family Law materials do not meet the legal definition of “record” under s. 278.1. The Crown concedes this to be the case.

[ 24 ] Concerning the text messages, the Defence submits they are “relevant to the complainant’s credibility and to demonstrate a counter-narrative to how the complainant has portrayed the relationship.”

[ 25 ] In support of his Application, J.M. has filed an Application Record that is 322 pages in length. Those materials were made sealed Exhibit #1 on this Application.

[ 26 ] The contents include the following: Tab 1, Notice of Application; Tab 2, Affidavit of Connor Boswell; Exhibits A-D to the Affidavit, including: (A) K.B.R.’s police statement; (B) Synopsis of the Charges before the court; (C) Family Law Materials; and, (D) Text Messages. Concerning the text messages under (D), there are 28 tabs organized chronologically by date, starting in August 2020 and ending in July 2024.

ii. Proposed Relevance for the Records in J.M. ’s Possession

[ 27 ] To the Family Law materials, J.M. submits they were voluntarily filed by K.B.R. in the context of a family law proceeding. She would have been aware that the materials could be reviewed by the court, opposing counsel, the Applicant, and court staff, and that she could be cross-examined on them. The documents are part of the public court record. Defence claims that they do not give rise to a reasonable expectation of privacy and, in any event, they are relevant to credibility and an alleged motive to fabricate.

[ 28 ] Concerning the text messages, Defence concedes they are “records”, pursuant to s. 278.1. The electronic communications are divided into two categories – the first category relates to K.B.R.’s credibility and her alleged motive to fabricate, whereas the second category is responsive to the Crown’s prior discreditable conduct application.

[ 29 ] Defence concedes that any proposed relevance to the second category of text messages hinges on whether the Crown’s discreditable conduct application is allowed.

[ 30 ] To the first category, Defence submits that the text messages at Exhibit D, Tabs 18 (February 2023), 19 (May 2023), 27 (March 2024), and 28 (July 2024) are part of the credibility/motive to fabricate category. These messages, J.M. claims, show that once the marriage had deteriorated, K.B.R. began to make unfounded or exaggerated allegations against him, and these messages are relevant to establishing her motive to fabricate the criminal allegations she made against him in her police statement of August 21, 2024.

[ 31 ] J.M. claims that these messages are both relevant to an issue at trial and have significant probative value that is not substantially outweighed by any danger of prejudice to the proper administration of justice.

[ 32 ] The Defence accepts that some of the messages it seeks to adduce are captured by s. 276, as there are references to other sexual activity. One of these messages mentions sexual activity in a peripheral sense – for example, at Exhibit D, Tab 4 (undated), K.B.R. allegedly offers to “pay [J.M.] in sexual favours” after he offers to buy a new battery for her car. The Defence submits that the reference is incidental to the real reason of the message, that is, its utility in contradicting K.B.R.’s narrative that J.M. was financially controlling.

[ 33 ] The second set of sexualized text messages are about other sexual activity, per se , and are said to undermine K.B.R.’s narrative that she lacked autonomy or control in the relationship when it came to sex; the messages sought to be adduced demonstrate that, at times, she was the initiator of the sexual encounters: Exhibit D, Tabs 13 (June 2022) and 25 (October 2023).

iii. The Crown’s Position on the Defence’s Application

[ 34 ] The Crown acknowledges that the Family Law materials are not “records”.

[ 35 ] Concerning the text messages, the Crown agrees that the vast majority are capable of meeting the Stage One threshold test, and therefore only a handful of the messages are the subject of this litigation. They are described below.

[ 36 ] To the sexualized text messages, the Crown contends that they are s. 276 evidence and require a proper application for their admissibility to be considered, which the Defence has not filed. In any event, the Crown submits that the purported use of these messages “is completely immaterial [as to] whether there was non-consensual sex during the charged offence.”

[ 37 ] To the text messages identified above at Tabs 18, 19, and 27, the Crown submits that they have no relevance in relation to the alleged motive to fabricate, and they are not capable of being admitted.

[ 38 ] Regarding the texts at Tab 28, the Crown accepts that they are closest in time to the separation, and their relevance is conceded for Stage One purposes.

IV . THE LEGAL FRAMEWORK

i. General Principles of the Law of Evidence

[ 39 ] In criminal trials, the judge is always the “trier of law”; it is the trial judge’s duty to administer the law of evidence by determining what information the trier of fact may consider in each case. The trial judge must also ensure that the trier of fact uses admissible information only in those ways that are permitted by law: R. v. Smith , 2011 ONCA 564 , at para. 59 ; R. v. Morrisey , [1995] O.J. No. 639 (C.A.).

[ 40 ] In the Ontario Court of Justice, the trial judge is both the trier of law and the trier of fact. In its gatekeeping function, the trial judge plays the role of determining both what evidence is admissible and for what purpose that said evidence can be used. The role that the law of evidence plays in determining the admissibility of evidence has been called “its most controversial role”: The Law of Evidence (7 th Ed.) , David M. Paciocco & Lee Stuesser (Irwin Law, Toronto: 2015), at p. 2.

[ 41 ] Ultimately, the rules surrounding the admissibility of evidence are concerned with ensuring trial fairness and providing predictability. These rules exist to prevent certain types of presumptively unreliable or prejudicial evidence from undermining the truth-seeking function of a criminal trial. They also provide trial judges the means to control the scope of criminal trials, which is meant “to keep them manageable and focussed on probative and relevant evidence”: R. v. Youvarajah , 2013 SCC 41 , at para. 25 .

[ 42 ] The fundamental rule that underpins the law of evidence in Canada is that all evidence that is logically probative to some material issue at trial is relevant, and therefore admissible unless excluded by a particular rule of law: R. v. Johnson , 2010 ONCA 646 , at para. 81 ; R. v. Morris , [1983] 2 S.C.R. 190, at p. 201; R. v. Abbey , [1982] 2 S.C.R. 24, at p. 40.

[ 43 ] To make its way into a criminal trial, evidence must be material , meaning that it is offered to prove or disprove a fact in issue. Facts in issue are determined by the allegations set out in a criminal charging document, alongside the governing procedural and substantive law. If the fact the evidence is offered to prove is not in issue, then that evidence is immaterial and is presumptively inadmissible: R. v. Hussein , 2026 SCC 2 , at para. 27 ; R . v. Luciano , 2011 ONCA 89 , at para. 207 .

[ 44 ] In addition to being material, evidence must be relevant . To determine relevance, the trial judge must ask whether the evidence sought to be adduced tends to increase or decrease the probability of a fact in issue. Judges must evaluate relevance “as a matter of logic and human experience”. The threshold for relevance is low, and judges can admit evidence that has modest probative value, subject to weighing it against the potential for prejudicial effect, including the likelihood that its admission could result in unfairness to the defendant: Hussein , supra , at paras. 27-28 ; R. v. Schneider , 2022 SCC 34 , at paras. 36-39 & 59-60 ; Luciano , supra , at para. 206 .

[ 45 ] Not all evidence that meets the basic rules of admissibility will be admitted. While relevance and materiality are necessary, they are not always sufficient. As a legal concept, the rules of admissibility are negative and exclusionary, rooted in policy considerations regarded as being sufficiently important to justify the exclusion of evidence that might otherwise be relevant and material. While the policy reasons for exclusion do vary, they at times attempt to curb a prohibited chain of reasoning: Luciano , supra , at para. 209 ; Johnson , supra , at para. 82.

ii. Extrinsic/Prior Discreditable Conduct Evidence

[ 46 ] A defendant’s prior discreditable conduct is one such category of evidence that arouses the potential for prohibited chains of reasoning. Those include “reasoning prejudice” and “moral prejudice”: R. v. Handy , 2002 SCC 56 , at paras. 31 , 42 & 100.

[ 47 ] “ Reasoning prejudice ” refers to the risk that bad character evidence will distract the trier of fact from deciding an issue in a reasoned way, including by introducing unnecessarily confusing or distracting evidence into the trial, or by attracting disproportionate attention resulting in an unfocussed trial: Hussein , supra , at para. 36 .

[ 48 ] “ Moral prejudice ” refers to the risk that bad character evidence will be used by the trier of fact to draw the prohibited ‘general propensity’ inference that the defendant is the kind of bad person likely to commit the offence charged: Hussein , supra , at para. 36 .

[ 49 ] It is for these reasons that Crown-led evidence of a defendant’s bad character, other than the conduct that forms the subject-matter of the charge, is presumptively inadmissible. Both forms of prejudice undermine trial fairness: Hussein , supra , at paras. 34 & 36 ; R. v. Tsigirlash , 2019 ONCA 650 , at para. 23 .

[ 50 ] The exception for admissibility of this type of evidence is narrow. It may be admitted where there is an issue in the trial of the offence charged “to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse”: Handy , supra , at para. 41 .

[ 51 ] A trial judge may admit prior discreditable conduct/similar fact evidence where:

i. The evidence is relevant to an issue other than general disposition (e.g., animus , context, narrative, explanation for delay);

ii. The evidence has some probative value, which is established by assessing similarity, temporal proximity, number of prior occurrences, distinctiveness, circumstances of the prior acts, strength of that evidence, and the improbability of coincidence;

iii. Prejudice – both moral and reasoning – is evaluated; and,

iv. The probative value of the discreditable conduct evidence must outweigh its prejudicial effect on a balance of probabilities.

See: Handy , supra ; Chizanga , supra ; R. v. L.B. ; R. v. MacDonald , 2017 ONCA 568 ; R. v. Nolan , 2019 ONCA 969 ; R. v. Z.W.C. , 2021 ONCA 116 ; R. v. Johnson , 2011 ONSC 195 .

[ 52 ] While it is true that reasoning prejudice may be substantially reduced in judge-alone trials ( R. v. MacCormack , 2009 ONCA 72 , at para. 69 ; R. v. Graham , 2015 ONCA 113 , at para. 28 ), that judges can self-instruct against misusing it cannot entirely eliminate prejudice – the “tainting” risk and the appearance of fairness remain live issues. Even very experienced judges must “actively advert” to the danger of prejudice or it can dominate the case or tend to skew the analysis of other evidence ( R. v. J.W. , 2022 ONCA 306 , at para. 34 ; R. v. Pereira , 2019 ONSC 4321 , at para. 99 ; R. v. Gill , 2021 ONSC 6797 , at para. 20 ).

[ 53 ] On the balancing question of whether the probative value of the proposed evidence outweighs its prejudicial effect, the trial judge must weigh the strength and importance of the probative link for the specific purpose identified against the realistic risk of impermissible prejudice. This is a case-specific determination, focused on the purpose for which the Crown seeks admission: Handy , supra , at paras. 61, 69 & 73 ; J.W. , supra , at para. 36 .

iii. Records in Possession of the Defendant

[ 54 ] Parliament’s 2018 amendment to the Criminal Code (Bill C-51) created a record-screening regime for materials in the possession or control of the accused in sexual-offence prosecutions. These amendments were designed to curb unnecessary invasions of privacy and dignity associated with private records surfacing at trial. Evidence covered by the regime is presumptively inadmissible, unless received through the rigours of the statutory screening process: R. v. J.J. , 2022 SCC 28 , at paras. 1-9 .

[ 55 ] Under s. 278.92(1)-(2), where the accused holds a “record” relating to the complainant, it cannot be admitted except in accordance with ss. 278.93/.94. For non-s. 276 material, it may only be admitted if it is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice, having regard to the statutory factors in s. 278.93(3).

[ 56 ] The threshold admissibility issue is addressed at the Stage One screening hearing, pursuant to s. 278.93. The accused must file a written application setting out the detailed particulars of the evidence and its proposed relevance. The court shall grant Stage One and convene a Stage Two admissibility hearing where the application complies with s. 278.93(2), and that evidence is capable of being admissible: s. 278.93(4).

[ 57 ] The definition of “record” is set out in s. 278.1 and captures any form of record that contains personal information for which there is a reasonable expectation of privacy. The definition captures the enumerated records set out in that section, and non-enumerated records with comparable privacy implications: J.J. , supra , at paras. 38-42 .

[ 58 ] The privacy standard established by s. 278.1 – “personal information for which there is a reasonable expectation of privacy” – suggests informational privacy, which contemplates the privacy holder’s right to control the dissemination of intimate details that go to their biographical core.

[ 59 ] While s. 8 jurisprudence informs the inquiry, the record-screening analysis is tailored to the regime’s purpose and focuses on the sensitivity of the actual information at issue, for which the claimant must have a subjective expectation of privacy that is objectively reasonable in the circumstances: J.J. , supra , at paras. 43-44 & 46-47 ; R. v. Jarvis , 2019 SCC 10 , at paras. 35-43 & 55-58 .

[ 60 ] A non-enumerated record falls within s. 278.1 where it contains information of an intimate or highly personal nature that is integral to the complainant’s physical, psychological, or emotional well-being and whose disclosure has implications for their dignity. Courts determine whether the privacy interest is engaged by analyzing both the content and the context of the information: J.J. , supra , at para. 54 .

[ 61 ] For content , courts consider whether the information resembles what is typically found in enumerated records. For context , courts apply a common-sense, normative lens and assess the totality of the circumstances, including three non-exhaustive factors: (i) why the information was shared; (ii) the relationship between the complainant and the recipient (e.g., a relationship of trust or authority may heighten privacy, though it is not required); and, (iii) where and how the information was created and shared (e.g., private, one-to-one domains may enhance privacy): J.J. , supra , at paras. 55 & 57-60 ; R. v. Edwards , [1996] 1 S.C.R. 128, at para. 45 .

[ 62 ] In summary, when defence-held materials concern a complainant in a sexual-offence prosecution, the court should: (i) determine whether the item is a “record” by analyzing content and context; (ii) if so, require and assess a compliant Stage One application and decide whether the evidence is capable of being admissible; and (iii) if it is, proceed to Stage Two to weigh relevance and significant probative value against the danger of prejudice to the proper administration of justice under s. 278.92(3).

V. APPLICATION OF THE LAW TO THE FACTS

[ 63 ] I have carefully considered all the written materials and oral submissions from both parties. I address each of the parties’ applications here, in turn.

i. The Crown’s Extrinsic Discreditable Conduct Evidence

[ 64 ] The Crown’s principal argument in favour of admitting the extrinsic discreditable conduct evidence is for context and narrative.

[ 65 ] To reiterate, the evidence sought to be adduced includes allegations that:

a) J.M. yelled at K.B.R. and called her derogatory names;

b) J.M. was controlling (e.g., by regulating who her children could have in the house; by monitoring how often the garage door was open; by controlling the finances and failing to pay child support; by taking her car key when he left for work; by not permitting her to find friends; by watching cameras in the house; by not allowing her to contact her children while separated; by going through her phone and by throwing water in her face to take her phone);

c) J.M. damaged items in the house; and,

d) J.M. got into arguments with K.B.R.’s daughter and called her a “bitch”.

[ 66 ] This evidence is presumptively inadmissible, and I have determined that the Crown will not be permitted to adduce it at J.M.’s trial.

[ 67 ] While I acknowledge that prior discreditable conduct evidence does have its place in some circumstances ( Nolan , supra , at paras. 42-43 ; R. v. Sandhu , [2009] O.J. No. 374 , 2009 ONCA 102 , at para. 16 ; and R. v. F.(D.S.) , 43 O.R. (3d) 609 , at pp. 616-17 O.R.), in my view, on the factual allegations of this trial, the proposed evidence is not material to any of the facts in issue. It is incapable of proving any of the “live conduct” that form the central allegations here.

[ 68 ] Furthermore, the evidence is significantly prejudicial, creating a risk of unfair character inferences, painting J.M. to be the kind of person who is likely to have committed the charged offences, rather than offering actual proof that he had done so.

[ 69 ] The proffered evidence is limited in specificity and connection to the issues at trial. As presented, it does not meet the level of similarity, temporal proximity, or clarity contemplated for evidence that is “highly relevant and cogent [such] that its probative value in the search for truth outweighs any potential for misuse”: Handy , supra , at para. 41 .

[ 70 ] Moreover, admitting this extrinsic discreditable conduct evidence could divert attention from the material issues and risk expanding the scope of the trial beyond what is necessary. There is also a possibility that its admission will result in an unfocussed trial and affect the overall appearance of fairness.

[ 71 ] The proposed evidence offers little by way of probative value, and what little value it offers does not outweigh its prejudicial effect on the balance of probabilities.

[ 72 ] I accept, by necessity, that there will be some narrative evidence called in this trial. But any such background information required to “complete the narrative” will only be admitted to the extent that it enables the witness’ testimony “to unfold in a natural and comprehensible fashion”: R. v. White , 2011 SCC 13 , at para. 47 ; R. v. Reimer , 2024 ONCA 519 , at para. 63 .

[ 73 ] As an aside, while as a matter of legal principle I accept the Crown’s submission that, in some cases, evidence of a history of controlling behaviour in a domestic context may be relevant where the complainant’s acquiescence during sexual activity was informed by fear, I do not accept that the case of R. v. S.K. , 2025 ONCA 149 , cited by the Crown, stands for that legal proposition. Even so, the extrinsic discreditable evidence sought to be adduced by the Crown in this case does not rise to that level.

ii. The Defence’s Application under ss. 278.92/.93

[ 74 ] Both the Defence and the Crown take the view that the Family Law materials are not “records” under s. 278.1. This court agrees with the litigants on that point of law, since such documents are presumptively accessible to members of the public on payment of a prescribed fee: Court of Justice Act , R.S.O. 1990, c. C.43, s. 137 ; Family Law Rules , O. Reg. 114/99, Rule 1.3.

[ 75 ] Of the two categories of text messages sought to be adduced by J.M., the second category claimed to be responsive to the Crown’s prior discreditable conduct application. Given that I have dismissed that application, J.M.’s reliance on the second category of text messages becomes moot.

[ 76 ] To the extent that any of the text messages include references to other sexual activity, including those found at Exhibit D, Tabs 4, 13 and 25, J.M. has not brought a proper s. 276 application, and I decline to consider the threshold admissibility of those communications on that basis.

[ 77 ] This leaves the first category of text messages, which the Defence claims are relevant to an issue at trial, being that they tend to undermine K.B.R.’s credibility and support an alleged motive to fabricate: Exhibit D, Tabs 18 (February 2023), 19 (May 2023), 27 (March 2024), and 28 (July 2024).

[ 78 ] Both parties acknowledge that these are “records”; the only question is whether these text messages are capable of being admissible for Stage One considerations.

[ 79 ] Having reviewed these sealed text messages, and in consideration of the reasons stated for their purported relevance, I find that Tabs 18 (February 2023), 19 (May 2023) and 28 (July 2024) meet the threshold admissibility requirements under s. 278.92(2)(b), with reference to the s. 278.92(3). They are capable of supporting the defence claim that K.B.R. had a motive to fabricate these criminal allegations.

[ 80 ] I find that Tab 27 (March 2024) fails to meet the threshold admissibility requirements.

VI. DISPOSITION

[ 81 ] The Applicant Crown’s application to admit extrinsic discreditable conduct evidence is dismissed.

[ 82 ] The Applicant Defence’s application is allowed, in-part, as follows:

a) I find that the materials relating to the Family Law proceedings are not “records” as defined in s. 278.1. Those documents are not subject to the ss. 278.92 regime.

b) The Application concerning the second category of text messages (i.e., those responsive to countering K.B.R.’s narrative) is dismissed.

c) The text messages conceded by the Crown as meeting the Stage One threshold test (referenced at para. 35), will proceed to the Stage Two hearing.

d) Concerning the first category of text messages (i.e., those said to be relevant to credibility and motive to fabricate), only the text messages at Tabs 18, 19 and 28 will proceed to the Stage Two hearing.

e) I decline to consider those messages concerning other sexual activity in the absence of a proper application.

Released: 12 February 2026

Signed: Justice C.A. Brannagan