Court File and Parties
Ontario Superior Court of Justice
Between:
His Majesty the King, Respondent
– and –
A.G., Defendant/Applicant
Counsel:
Loc Welch, for the Crown
Nikolas Lust, for the Defendant/Applicant
Heard: March 3, 2025
Ruling on Midtrial Adjournment Application
McVey J.
Background
1A.G. stands charged with offences against three complainants, S.R., A., and T.G., all of whom were his adopted children at the relevant time. The Crown alleges that A.G. committed repeated acts of sexual violence against S.R., culminating in an alleged assault in December 2018 that precipitated S.R. leaving the family home permanently. The Crown further alleges that A.G. committed numerous acts of sexual assault and assault against A., and assaults against T.G. The complainants are approximately 20, 18, and 16 years of age, respectively, though they were all minors at the time of the alleged offences. The police arrested A.G. for offences against S.R. in November 2022. A. and T.G. came forward to police with their own allegations against A.G. in April 2023.
2A two-week judge alone trial commenced before me on February 24, 2025. On February 28, 2025, counsel for A.G. asked me to adjourn the remainder of the trial so that he could bring a midtrial section 278.92 application. I ruled that it was not in the interests of justice for the application to be heard, and I denied the adjournment request. These are my complete reasons.
Procedural History
3S.R. was the Crown's first witness. She completed her evidence on February 26, 2025. The Crown called A. as its second witness. On February 28, 2025, the defence commenced its cross-examination. The defence did not flag for me any issues respecting section 278.92 before it began its cross-examination. On the same day, midway through cross-examination, counsel for A.G. advised me that he had text messages in his possession between A. and A.G., as well as between A. and A.G.'s adoptive mother at the time of the alleged offences, M.G. The defence first sought a midtrial ruling on whether A. enjoyed a reasonable expectation of privacy in the messages. The defence further advised me that it would seek to adjourn the trial to bring a section 278.92 application, if necessary.
4This occurred at approximately 11:15am on February 28, 2025. A. was sent home for the day in the middle of her evidence while I heard submissions on whether any of the messages constituted "records" and, if so, whether I would allow a section 278.92 application to proceed, considering the additional and significant disruption it would cause to the proceedings. I declined to exercise my trial management powers in favor of A. receiving notice of the motion for directions: see R v J.J., 2022 SCC 28, at para. 105; R v C.T., 2023 ONCJ 124, at paras. 9-19. Having seen the text messages at issue, I was confident that I could determine whether they constituted records without input from A.
5The defence sought direction on five different sets of text messages. The Crown reasonably conceded that A. did not enjoy a reasonable expectation of privacy with respect to two sets of messages given their brief and mundane nature. With respect to the remaining three sets of messages, pursuant to an oral ruling given on February 28, 2025, I found that they constituted "records" within the definition of section 278.1 of the Criminal Code and that a successful application was required before the defence could put the messages to A. during cross examination.
6After hearing oral submissions on March 3, 2025, regarding the defence's request for an adjournment to bring the section 278.92 application, I concluded that allowing the defence to proceed with the application would not be in the interests of justice, and I denied the adjournment request.
7A.'s evidence continued later that day.
Applicable Law
8Generally, section 278.92 applications should be conducted pre-trial: J.J., at para. 85. Pretrial rulings may be reconsidered by the trial judge during trial if the circumstances call for it: R v R.V., 2019 SCC 41, at para. 75. Pursuant to their inherent trial management powers, however, trial judges may permit a new application to be brought for the first time midtrial if doing so is in the interests of justice.
9Midtrial applications must never become the norm, however. And for good reason. Midtrial applications pose both substantive and procedural difficulties, particularly in jury trials. As this case demonstrates, a midtrial application will often, if not always, result in an adjournment. Midtrial adjournments not only negatively affect the proceedings before the Court, but also the administration of justice more broadly.
10For example, in the present matter, an entire week of trial time would have been lost to accommodate the late application. Though the defence was prepared to concede for section 11(b) purposes that the delay fell at its feet, this type of concession only partially answers the mischief posed by midtrial applications that necessitate adjournments. Notwithstanding the section 11(b) concession, five days of trial time would still have been lost, requiring the parties to secure five additional days of court time to complete the trial—time that would otherwise have been available for another accused.
11Further, a waiver of section 11(b) does nothing to account for the impact of delay on a sexual assault complainant. Characterizing an adjournment as defence-caused delay is small comfort to a complainant who is told part way through a potentially traumatic process that the matter will be delayed for many more months. Midtrial adjournments can visit unnecessary stress and anxiety on complainants, a development which could indirectly discourage the reporting of sexual offences: J.J., at para. 86. For example, in the present matter, A. was in the middle of cross examination and struggling emotionally at various times when defence raised the section 278.92 issue for the first time. Had I permitted the section 278.92 application to proceed, based on my schedule alone, A. would have had to wait at least another six months before completing her evidence. In J.J., the Supreme Court recognized that "mid-trial applications could also harm complainants and discourage the reporting and prosecution of sexual offences": para. 86. While not determinative, the potential toll of such a significant delay on A. was a relevant factor in my assessment of whether the adjournment served the interests of justice.
12In J.J., the Supreme Court did not provide lengthy or detailed guidance on when hearing a midtrial section 278.92 application would be in the interests of justice. This is undoubtedly due to the wide range of circumstances that could justify such a development. In my view, many of the following factors that guide the exercise of judicial discretion when considering midtrial Charter applications are relevant:
The right to make full answer and defence, including the apparent merits of the application based on any materials filed in writing or submissions made in the proceeding;
the nature of the Applicant's non-compliance with the Rules;
the prejudice, if any, to the Crown;
the degree of disruption to the proceedings;
the history of the litigation, including any pretrial applications;
the need for an orderly conduct of trial proceedings; and
any other factor the trial judge considers relevant.
See R v Thombs, 2023 ONCA 850, at para. 13; see also Rule 34.03 of the Criminal Proceedings Rules of the Superior Court of Justice.
13A trial judge undoubtedly has the discretion to dismiss midtrial motions raised for the first-time during trial. Without such a power, trial judges could not properly control the proceedings before them: R v Kazman, 2020 ONCA 22. However, this power must be exercised cautiously and only after considering both the fair trial rights of the accused and the Court's obligation to control the trial process: R v Hazout, 199 C.C.C. (3d) 474, at para. 31. The concept of controlling the trial process includes promoting the public's interest in having criminal cases disposed of on their merits in an expeditious and efficient manner: R v McCallen, [1999] O.J. No. 202, at para. 46. Trials promptly held and completed enjoy the "confidence of the public": R v Morin, [1992] 1 S.C.R. 771, at para. 29. The public undoubtedly have an interest "in the prompt and fair administration of justice": Morin, at para. 86. While these comments were made in the context of considering a stay of proceedings pursuant to s. 11(b) of the Charter, the "spirit of these comments is equally applicable to applications for adjournments": R v Hinds, [2015] O.J. No. 4754 (S.C.), at para. 27.
14Based on the foregoing, when presented with a request to adjourn proceedings to accommodate a mid-trial section 278.92 application, a trial judge must assess not only the immediate impact of an adjournment on the case at hand but also its broader implications for the administration of justice, including the growing imperative to ensure that criminal proceedings are conducted fairly, efficiently, and in an orderly fashion: Kazman, at para. 15.
Analysis
Merits of the Application
15To gain admission, the text messages had to be "relevant to an issue at trial and have significant probative value that was not substantially outweighed by the danger of prejudice to the proper administration of justice" having regard to factors listed in section 278.92(3). The defence argued that the messages were relevant to A.'s credibility.
16For the following reasons, I found that it was not in the interests of justice to permit the section 278.92 application to proceed. In my view, the impeachment value of the text messages was minimal in the circumstances of this case and did not outweigh the negative impact the application would have on the complainants and the administration of justice. Further, many of the purported contradictions on which the proposed application was based arose through a fundamentally flawed process that undermined the merits of the application. I elaborate on these points more fully below.
Assessment of Impeachment Value
17I will assess the impeachment value of each set of messages. The three sets of messages that I found constituted "records" were labelled packages A, C and E of exhibit one on the motion for directions. I will refer to them in the same manner in these reasons.
18The text messages contained in package A were sent between A. and A.G. on February 2, 2023. By that time, A.G. had been charged with criminal offences and his bail conditions prevented him from residing at the family home, though he visited daily. The messages are brief in nature. A. tells A.G. that she misses him, that she "hugs [him] every day" and that she will "miss that."
19The text messages in package C were sent between A. and A.G. on March 18, 2023. A. tells A.G. that she misses him, and that "it's not easy not having [him]" in her life right now because he has "always been there" for her. A. writes that she does not feel okay with him being gone because she cannot hug him. A.G. tells A. that he feels the same way and that sometimes "you don't know what you have until it's gone." A. further states that "she" presumably referring to S.R., is going to "come up with more lies" and that things will get worse. A.G. responds that "this is the worst thing possible" and that even had S.R. "said I tried to kill her it would not be as bad as this." A. writes that she knows A.G. never touched S.R. and that "everybody knows that." A. states that she "hates" S.R.
20Finally, the text messages reflected in package E were exchanged between A. and her adoptive mother, M.G., on November 22, 2022, shortly after A.G.'s arrest for the offences against S.R. A. sends an emoticon of a person crying and says that she does not want to be in school. She asks M.G. whether A.G. will be coming home. A. writes that the thought of A.G. not coming home makes her "mad and sad" that she cannot stop crying, and that she feels "really stressed." A. further writes that she knows"dad did nothing."
21The defence argues that all three sets of text messages have impeachment value in various ways given answers that A. provided both in examination-in-chief and cross-examination.
22First, the defence argues that A. testified that she did not feel safe in the home up until she moved out and that she was relieved when A.G. was forced to leave the home after he was charged. Yet, in the various sets of text messages, as described above, A. writes that she misses A.G. and wants him to come home. Second, A. testified that she had a positive relationship with S.R. when S.R. lived in the home yet in the text messages she writes that she does not believe S.R.'s allegations and that she "hated" S.R. Third, A. testified that she did not know why S.R. left the home until she spoke with her about the allegations in April 2023, yet the text messages in package C arguably disclose that A. was aware of the allegations by mid-March 2023. The anticipated evidence on the section 278.92 application is that A.G and M.G. told A. about the sexual nature of the allegations in late February or early March 2023 during a family meeting.
23I will deal first with the impeachment value of the messages and then I will comment on how some of the records were improperly used in cross-examination to partially lay the evidentiary basis for the section 278.92 application, a flawed approach that undermines the protections afforded by the section: see R v Green, (unreported, 28 May 2021) Ottawa 19-SA4367 (SCJ).
24As noted above, A.G. argues that A. wrote in her messages that she "hated" S.R. while she testified that her and S.R. had a good relationship while they lived together. Though I accept that this is a contradiction, in my view, it nonetheless has little impeachment value in this case. A. was text messaging with A.G. when she stated that she "hated" S.R. for coming forward with her allegations. A. was still living in A.G.'s home when she wrote the message. The fact that she sought to align herself with A.G. while speaking with him in those circumstances has little to no forensic value. In other words, the fact that she told A.G. on one occasion when discussing the charges that she "hated" S.R. does not, in my view, undermine her credibility to an extent that an adjournment of the trial is warranted.
25Similarly, the fact that A. responded "no" when asked specifically by counsel whether she ever told either of her adoptive parents that she did not like S.R. has little to no impeachment value. I appreciate that general credibility is relevant to the outcome of this case. But this contradiction has no direct bearing on any of the allegations of fact that must be proven by the Crown. Further, this was one brief statement made by A. almost two years before trial where she did not have the benefit of having her memory refreshed by the message or having the context of the statement put to her. Though a contradiction, this inconsistency did not justify a lengthy adjournment, either when viewed individually or collectively with the other contradictions disclosed by the text messages.
26I make the same finding with respect to the purported contradictions between A.'s text messages about missing A.G. and her trial evidence about being relieved that he was gone. In response to very specific questions put to her in cross-examination that were no doubt driven by the content of the text messages in possession of the defence, A. testified that she "disliked" A.G. after he began to sexually assault her, that she was "relieved" when he had to move out of the home, that she did not want him to come back, that she did not miss him after he moved out, and that she did not like hugging "people." This area of questioning mirrored the content of the text messages that were ultimately filed with the Court on the motion for directions. In other words, it is clear to me that counsel for A.G. used the text messages to illicit inconsistencies that he then sought to rely upon in his application as a basis of relevance. I say more on this further below.
27With respect to relevance, however, for the same reasons as set out above, though they disclose inconsistencies, these messages have little probative value from an impeachment perspective. The fact that A.G. testified that she did not like touching people, which included "hugging" is not contradicted by her messages to A.G. wherein she states that she "hugs" him every day. A.G. never stated that she did not show affection to family members, particularly her own parents. In any event, this is a completely benign contradiction that is not worth any court time to explore.
28Further, the fact that A. wrote in her messages to A.G. and M.G. that she missed A.G. and that she hoped he was coming home is also of little forensic value because even were A.'s allegations true, there is nothing surprising about A. making these comments to A.G. and M.G. with whom she was still living: see R v J.V., 2015 ONCJ 815, [2015] O.J. No. 7735, at para. 146. In the circumstances, these messages do not undermine A.'s credibility to an extent that an over six-month adjournment is justified.
29In summary, with respect to A.'s writings about her feelings towards A.G. or S.R., I do not find that they disclose a level of inconsistency that would give rise to serious issues of credibility were the trial adjourned for over six months to potentially permit the records to be used at trial.
30The defence maintains that the text messages in package C contradict A.'s evidence about when she found out about S.R.'s allegations. A. testified in examination-in-chief that she "didn't know anything happened to [S.R.]" until A. left the family home permanently in early April 2023 and spoke with S.R. on the phone days later. In the text messages exchanged between A. and A.G. in mid-March 2023, A. states that "I know you never touched her everybody knows that." Though there is no direct reference to sexual touching, the tenor of the messages suggest that A. was aware by mid-March that S.R. had made sexual allegations against A.G.
31In terms of the timing of A. finding out about S.R.'s allegations, I find the impeachment value of this purported inconsistency insignificant. S.R. testified that she found out in early April 2023 about S.R.'s allegations, while the anticipated evidence on the application is that she was informed by A.G. and M.G. in late February or early March 2023. This is not a substantial inconsistency.
32With that said, timing aside, I accept that there is an inconsistency between her evidence and the text messages regarding how she found out about S.R.'s allegations. A. testified that she found out from S.R. after A. left the family home. However, the text messages combined with the anticipated evidence on the application suggest A. found out from M.G. and A.G. before leaving the home.
33In the end, the purported impeachment value lies in whether A. first discovered S.R.'s allegations in early April from S.R., or in late February or early March from M.G. and A.G. This is the type of peripheral detail that does not carry the type of impeachment value that could justify a lengthy disruption in these proceedings.
34Apart from impeachment, however, the messages could be used to establish that A. was aware of S.R.'s allegations before A. disclosed her own allegations to M.G. before leaving the home. However, were the defence relying on that as a basis of relevance, then the relevance of the messages was entirely foreseeable and an application in advance of trial should have been made. A. and S.R. were siblings. A. denied the now-alleged abuse when first asked about inappropriate touching by CAS in October 2022 when S.R. first came forward. A. later came forward in April 2023. What prompted her to do so and what information she may have had about S.R.'s allegations before doing so given their relationship would have been a foreseeable area of cross-examination, in my view. Potential collusion is often, if not always, an area of exploration when siblings report a similar form of sexual abuse allegedly committed by the same perpetrator.
35The need to cross-examine in this area was particularly foreseeable because in A.'s police interview dated April 22, 2023, she states that she did not know anything about why S.R. left the home until very close to when she came forward herself. In other words, the defence was placed on notice that A. positioned her awareness of S.R.'s allegations proximate to her own disclosure, which was in early April 2023. If defence had material in its possession suggesting that A. was made aware of the allegations a month or a month-and-a-half earlier and it felt that evidence was sufficiently relevant to warrant an application, an application should have been raised before trial. Similarly, if it felt that there was relevance aside from impeachment in terms of establishing that A.G. was aware of S.R.'s allegations before she disclosed her own allegations to M.G. before leaving the home, then an application should have been raised. In my view, the issue of when A. became aware of S.R.'s allegations did not arise organically and by surprise through examination-in-chief.
36I will make one final point regarding the timing of A.'s awareness of S.R.'s allegations. The impeachment value of the purported contradiction would trouble me more if A.'s evidence had been that she did not find out about the allegations from S.R. until after A. spoke with the police. This would be especially problematic because that contradiction would directly impact the live triable issue of collusion. However, that was not A.'s evidence. A. freely offered in examination-in-chief that she spoke with S.R. about the allegations approximately three days after leaving the home and before A. spoke with the police and provided them a statement. In other words, there was no indication in A.'s evidence that she was specifically tailoring her evidence to nullify or negative an argument regarding collusion.
Improper Use of Records in Cross-Examination
37As noted above, in addition to my finding that the text messages had little impeachment value, I also had concerns about how some of the records had already been used during cross-examination to lay the groundwork for the section 278.92 application that followed. The defence cannot cross-examine a complainant using the contents of a presumptively inadmissible record and then use their responses as evidence to support an application that should have been made before the questions were posed: Green, at para. 16. In other words, evidence obtained in violation of section 278.92 cannot be used to support a subsequent application: Green, para. 16; see also R v Kuzmich, 2020 ONCA 359. Counsel for A.G. fairly conceded that he had used the records in this way at various points in his cross-examination.
38In Green, the defence was in possession of a note that the complainant had given to the accused wherein she thanked him for supporting her and stated that he had literally "saved her life." The note was later found to constitute a "record." At the preliminary inquiry, without revealing that it possessed the record or obtaining a ruling as to its admissibility, the defence asked the complainant whether she had ever expressed to the accused that he may have "saved her life." She responded that she had not.
39In the context of a section 278.92 application brought before trial, this inconsistency was used as a basis for admissibility. Gomery J. found that despite the defence not explicitly referring to the note during the preliminary inquiry, the question nonetheless violated section 278.92. In fact, Gomery J. found that the defence's failure to refer to the note made the process "even more offensive and unfair to the complainant" because the complainant was asked about something she may have said four and a half years earlier without being provided the context in which she allegedly said it. Gomery J. held that the "only purpose of quoting a portion of the note to her appears to have been to set up a challenge to her credibility when she was confronted with the Note at trial. This is exactly the kind of ambush using a complainant's private records that s. 278.92 is designed to limit or prevent": Green, at para. 21.
40Here, at the outset of cross examination, counsel for A.G. asked A. several specific questions about her relationship with S.R. and whether "she had ever told her parents that she did not like S.R." At this stage of the cross-examination, counsel for S.R. was using the record in his possession absent a successful application. A. was also asked questions about her feelings about A.G. in late 2022 and early 2023 that clearly tracked the contents of the messages in the possession of the defence. This cross-examination was improper. Since the questions were improper, the answers given to them cannot be relied upon to support an application: Green, at para. 12. In effect, the defence made A. a compellable witness in the section 278.92 proceeding, contrary to section 278.94(2): see Green, at para. 15.
41The defence first acknowledged using the records in his cross-examination at the outset of his submissions on the section 278.92 issue. When the defence paused its cross examination and raised section 278.92 for the first time, he advised me that he could not tell at the outset of his cross-examination whether the records were relevant so he"directed his cross examination to answer those questions, because the answers to those questions would be dispositive of the relevance of the text messages." In other words, counsel for A.G. used the records to illicit inconsistencies that had not yet materialized, then tried to use those purported inconsistencies to support his application.
42After being given an opportunity to read Green, counsel for A.G. fairly conceded a second time that he had used some of the records during parts of his cross examination. He stated that this was a good faith error on his part. He did not fully appreciate that doing so could give rise to the mischief set out in Green. Without reservation, I accept that counsel for A.G. was not knowingly circumventing his section 278.92 obligations, and I appreciate his candor. Just the same, a large basis for the application arose through cross-examination on the records themselves. This practice, even if not done in bad faith, cannot be condoned.
Disruption to the Proceeding
43An adjournment would have significantly disrupted the proceedings and would have negatively impacted the administration of justice writ large. Two weeks of trial time was set aside for this matter in addition to numerous days for pretrial applications. Counsel for A.G. raised the issue mid-morning of day five of trial. The remainder of the day was used dealing with the motion for directions, which undoubtedly visited a degree of prejudice on the Crown given the lack of notice they received resulting in it having little time to review the text messages and prepare its oral argument. It was nonetheless willing to proceed expeditiously given that the trial could potentially resume were I to find that the messages were not "records."
44After I ruled that three sets of the text messages were captured by the statutory screening regime, all parties agreed that the remaining week of trial could not be salvaged were I to permit the application to be heard on the merits. No further witnesses could be called until I resolved the admissibility of the records. Given my schedule alone and the upcoming summer months, this matter would not have resumed until the fall at the earliest.
45Delaying this matter would have been unfair to A. who was in the middle of her evidence. T.G. was also prepared to testify as soon as A. completed her evidence. The negative impact that an untimely adjournment could have had on A. and T.G.'s wellbeing as recognized by the Supreme Court in J.J., particularly given their vulnerability and life circumstances, was a relevant factor when deciding whether the adjournment was in the interests of justice.
46So, too, was the five days of lost trial time that would have resulted. It goes without saying that the criminal justice system is experiencing unprecedented challenges in a post-COVID and post-Jordan era. Court resources must be jealously guarded for the benefit of all exposed to the criminal justice system. In J.J., the Supreme Court directed that these motions be heard pretrial. As I have already noted, a section 11(b) waiver is not a complete salve when it comes to addressing the full extent of the mischief associated with midtrial applications. As a matter of basic arithmetic, wasted court time has a direct impact on the justice system's ability to meet its Jordan obligations, a duty that it owes to all accused persons in the system. A section 11(b) waiver or the attribution of delay to the defence in a subsequent section 11(b) analysis only addresses part of the mischief wrought by late applications. It does not address the harm done to complainants or the section 11(b) interests of other accused persons that are implicated by large swaths of trial time going unused. This says nothing about the inconvenience that midtrial applications bring about in jury trials.
47With that said, I appreciate that circumstances can arise that would nonetheless justify adjourning a trial despite the resulting waste in valuable court resources. I simply make two points. First, the somewhat exceptional circumstances that would warrant a midtrial adjournment of a two-week matter did not arise here. Second, the relevance of the evidence sought to be adduced, though of course significant, is but one factor in the analysis. The determination of whether to upset an ongoing trial, causing delay in that matter as well as all others, must seek to balance the fair trial rights of the accused with broader administration of justice goals that, too, have a constitutional dimension. This involves a nuanced analysis given the challenging times in which we are operating. An accused person is entitled to a fair process, not necessarily a perfect one: R v Goldfinch, 2019 SCC 38, at para. 30. As a general rule, trials should start and finish on time and proceed in an orderly fashion. Decisions on adjournment applications should be made mindful of that important objective.
48In the present matter, counsel for A.G. had numerous opportunities to at least raise the fact that he had text messages in his possession that he would seek to use in cross-examination. Several pretrial applications were heard in this matter including a severance application, a section 7 application, a third-party records application for CAS records, and an associated section 278.92 application after I ordered production of a portion of the CAS records. At no point during those appearances did the defence broach the topic of being in possession of text messages between A. and A.G. despite, as the defence conceded in its submissions, it intended to use at least some of the records to illicit inconsistencies. To that end, their use at trial was entirely foreseeable. Counsel for A.G. stated as much during his initial submissions on the section 278.92 issue, i.e., the relevance of the messages had not yet fully materialized, so he took active steps in cross-examination to bolster their relevance to further his application. If counsel intended on using the records to draw out inconsistencies, he should have raised the issue earlier.
49If the circumstances give rise to concerns that trial fairness will be compromised by having to disclose the details of an application to the complainant in advance of trial, creative solutions can be explored. For example, the presiding judge may direct that the application not be disclosed to the complainant or that portions of it be redacted: J.J., at paras. 94-96; R v C.T., 2023 ONCJ 124, at para 28. The answer, however, cannot be to shelve the application and then seek an adjournment midway through a lengthy trial resulting in lost court time. The administration of justice cannot sustain the loss of court time brought about by this type of practice.
50Even were I wrong on the impact of this point on the merits of the adjournment application, I would nonetheless have denied the adjournment because the prejudice it posed to the proceedings far outweighed the probative value of the text messages.
Conclusion
51This matter was set for a two-week trial. That is a significant amount of court time. All efforts should have been made to ensure it was fully utilized, both for the benefit of those directly involved in this matter, and for the good of the justice system as a whole. The 2025 trial dates were reserved on May 12, 2023. The parties had many months to prepare. Numerous pretrial applications were argued. All issues that could have caused unnecessary disruption should have been raised and canvassed at the earliest opportunity. If doing so posed a risk of prejudice to A.G.'s fair trial rights, solutions could have been explored.
52I accept that unforeseen events can unfortunately arise during a trial that would justify an adjournment and the consequential waste of court resources. But, in my view, many of the issues that arose in this case giving rise to the application were not only foreseeable but were in fact foreseen. In addition, the messages sought to be introduced carried little to modest probative value, yet the prejudice associated with their potential introduction was substantial: a loss of five days of court time and potential harm to two young, vulnerable complainants.
53Ultimately, because of the minimal relevance of the evidence sought to be adduced, the problematic way in which the foundation for the application emerged, and the length of the adjournment required for the application to be heard on the merits, the interests of justice favored continuing the trial.
McVey J.
Released: September 24, 2025
