ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-25-5

DATE: 2025-12-19

BETWEEN:

HIS MAJESTY THE KING – and – B.J.

A. Khoorshed, for the Crown

Mr. D. Johnson, for the Accused

HEARD: December 19, 2025

REASONS FOR JUDGMENT

conlan J.

[ 1 ] This Court has been asked to decide the following insular question: may the Crown use materials disclosed by the defence as part of its application for directions as to whether it had to bring an application under subsection 278.93(1) of the Criminal Code , materials that were ultimately ruled by this Court, on consent of the Crown, to not be a “record” within the meaning of section 278.1 of the Criminal Code and, hence, not be governed by the section 278.93 regime, in direct examination of the complainant at trial?

[ 2 ] This Court rules as follows: the answer to the question is “no”. The Crown may not use those materials in its direct examination of the complainant at trial.

[ 3 ] Neither side was able to point this Court to any court decision in Canada that is directly on point. The issue was argued by counsel in about 40 minutes of court time on December 19, 2025 and based on general principles, with the Crown relying exclusively on the decision of the Supreme Court of Canada in R. v. J.J. , 2022 SCC 28 .

[ 4 ] In my view, J.J. is of no assistance to the Crown on the narrow question before this Court. The Supreme Court of Canada’s comments at paragraphs 185 and 186 of that decision, both paragraphs having been focused on by the Crown before this Court, must be read in the overall context of the subject matter of the decision itself. When the Supreme Court of Canada speaks about the importance of the search for the truth and the desire to avoid trials by ambush, those remarks must not be interpreted so widely that they are applied to the materials that are at issue in our case.

[ 5 ] First, J.J. is the seminal authority that is all about the interpretation and the constitutionality of the legislative provisions associated with the section 278.93 regime. The section 278.93 regime deals with things that are a “record”. But the materials in our case are not “records”. The Crown has agreed with that. The Court has determined that. The materials are (i) a letter from the complainant’s family law counsel to the accused and (ii) publicly accessible social media posts made by the complainant.

[ 6 ] Second, obviously, the said materials are already well known to the complainant and, thus, the notion that the complainant will be unfairly ambushed at trial is not a real one.

[ 7 ] Third, the Crown’s submission that the paragraphs relied upon from J.J. are of general application and are not at all confined to something that is a “record” and the section 278.93 regime is, respectfully, something that this Court cannot accept. If the Supreme Court of Canada intended to make a sweeping change to what accused persons in criminal cases may or may not confront the complainant with at trial without prior disclosure of the same, regardless of the nature of what it is and whether it has anything to do with the section 278.93 regime, then I think that the justices of this country’s highest court would have expressly said so in their decision.

[ 8 ] Fourth, in my view, to rule in favour of the Crown’s position would be to discourage defence counsel from bringing applications for directions in these types of cases, and that would be most unfortunate. The result would inevitably be many more mid-trial applications by or on behalf of accused persons, adjournments of trials, further delays, and unduly complicated proceedings. That is not in anyone’s interest, including a complainant, and not in the public interest.

[ 9 ] Fifth and finally, to rule in favour of the Crown’s position would be to take away from the defence a tactical advantage that it has, and without any legal basis for doing so. It would beg the question as to whether other defence disclosure obligations ought to be in place. If not, why not? What about, for example, the neighbour of the complainant who will be a defence witness at trial to say that they spoke with the complainant and heard the complainant say that the complainant lied to the police? If the paragraphs of J.J. being relied upon by the Crown are, indeed, of a general application, then would the defence not be required to disclose that evidence to the Crown in advance of trial so that the complainant is not suddenly confronted with that in cross-examination? I would think so, however, that would mark a rather seismic change in the way that we conduct criminal law proceedings in Canada.

[ 10 ] The final paragraph of the Crown’s written application that led to the hearing of this discrete issue reads as follows, “[i]t is submitted that there is no legal basis to prevent the Crown from asking about these posts in direct examination, in a proper search for the truth”. In my view, however, there is a legal basis for that. The legal basis is that the disclosure rules in criminal proceedings in Canada are not, have never been, and likely will never be, equal on both sides. But for its in camera application for directions, the defence was under no obligation to disclose these materials when it did. To effectively penalize the defence for doing the responsible thing in bringing the application for directions would be imprudent, in my opinion.

[ 11 ] One final observation must be made. As I said to counsel during the hearing of the issue, this ruling has no impact on any re-examination by Crown counsel of the complainant at trial.

Conlan J.

Released: December 19, 2025