R. v. Bloxsidge, 2026 ONSC 1492

COURT FILE NO.: CR-25-00000022-0000

DATE: 2026-03-12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KYLE RONALD BLOXSIDGE

Accused

George Christakos, for the Crown (Respondent)

Stephanie DiGiuseppe and Brandon Chung, for the Accused (Applicant)

HEARD: In writing

HEENEY J.:

1The issue that these reasons will address arose during the context of an application under s. 278.3 of the Criminal Code for production and disclosure of two sets of records. I have already heard stages one and two regarding one set of records, and stage one regarding the other.

2I am hearing this application as Case Management (“CM”) judge, duly appointed by the Regional Senior Justice. The non-jury trial is scheduled to be heard commencing June 8, 2026 before a different judge. Defence counsel were apparently unaware that I was not scheduled to be the trial judge until our most recent court attendance on February 19. At that time, Ms. DiGiuseppe indicated that she may be taking the position that the s. 278.3 application can only be heard by the judge who is, or will be, trying the case, and not by a CM judge. It was agreed that if she intended to pursue that issue, it would be dealt with by written argument. That written argument has now been filed, and responded to by the Crown.

3The applicant’s argument flows from the wording of s. 278.3(1) and (2), which provide as follows:

(1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

4Thus, it is argued that I have no jurisdiction to hear this application, since I will not be the trial judge. It is submitted that there are both procedural and substantive benefits to the accused in having the trial judge make the necessary rulings under s. 278 that would be lost by having a CM judge make those rulings.

5However, s. 551.3 expressly states that a CM judge who is performing duties before the evidentiary stage of the trial exercises the powers that a trial judge has. The relevant provisions of that section are set out here:

551.3 (1) In performing their duties before the stage of the presentation of the evidence on the merits, the case management judge, as a trial judge, exercises the powers that a trial judge has before that stage in order to assist in promoting a fair and efficient trial, including by

(a) assisting the parties to identify the witnesses to be heard, taking into account the witnesses’ needs and circumstances;

(b) encouraging the parties to make admissions and reach agreements;

(d) establishing schedules and imposing deadlines on the parties;

(e) hearing guilty pleas and imposing sentences;

(f) assisting the parties to identify the issues that are to be dealt with at the stage at which the evidence on the merits is presented;

(g) subject to section 551.7, adjudicating any issues that can be decided before that stage, including those related to

(i) the disclosure of evidence,

(ii) the admissibility of evidence,

(iii) the Canadian Charter of Rights and Freedoms,

(iv) expert witnesses,

(v) the severance of counts, and

(vi) the separation of trials on one or more counts when there is more than one accused; and

(h) ordering, in each case set out in subsection 599(1), that the trial be held in a territorial division in the same province other than that in which the offence would otherwise be tried.

(3) When the case management judge exercises the power referred to in paragraph (1)(g), he or she is doing so at trial.

6The applicant submits that the two sections are in conflict, and asks that I apply the “implied exception” rule of statutory interpretation, as described in Driedger’s Construction of Statutes, Third Edition by Ruth Sullivan, Butterworths Canada Ltd., 1994 at p. 186, where it states the following:

Implied exception (generalia specialibus non derogant). Where two provisions are in conflict and one of them deals specifically with the matter in question while the other is of more general application, the conflict may be avoided by applying the specific provision to the exclusion of the more general one. The specific prevails over the general; it does not matter which was enacted first.

7Thus, I am urged to find that the specific words of s. 278.3, which require the application to be heard by the judge who is, or will be, trying the case, must be applied to the exclusion of the more general words in s. 551.3.

8The applicant does note, however, that Driedger also states (at p. 191) that where the two provisions cannot be reconciled in this manner, the doctrine of implied repeal may give primacy to the more recent enactment. In that regard, s. 278.3 was enacted in 1997, through Bill C-46. Sections 551.1 through 551.4, which created the position of CM judges, were enacted fourteen years later, in 2011. Given that s. 551.3 (1)(g) specifically empowers a CM judge to adjudicate, in a pretrial motion, the very issues that are at stake in a s. 278.3 application (i.e. the disclosure and ultimate admissibility of evidence, as contemplated by s. 551.3(1)(g)(i) and (ii)), one could conclude that this more recent enactment should have primacy.

9The applicant relies on a single sentence in a single case, R. v. Singh, 2025 ONCJ 214, as support for the position he is advancing. There, the application judge was dealing with a pretrial application for an order under s. 714.1 to permit the complainant in a sexual assault case to testify remotely by video from another province. He was neither a CM judge nor the assigned trial judge. The accused argued that the application judge had no jurisdiction to hear the matter. At para. 21, Assié J. said the following:

Currently, the only matters that cannot be moved [i.e. moved from one judge’s court into another’s] are those with ss. 276/278 C.C. applications because s. 278 C.C. explicitly states that those applications must be heard by the trial judge.

10To begin with, this is clearly obiter, since the judge was not dealing with an application under s. 278, but rather with one under s. 714.1. Secondly, it did not deal with the jurisdiction of a CM judge to deal with a pre-trial application, but rather dealt with the jurisdiction of a judge other than either the trial judge or a CM judge to do so. Thirdly, it is a decision of the Ontario Court of Justice, which is not binding on me. I decline to give any weight to this authority.

11By contrast, the only other case cited by counsel, R. v. Aden, 2021 ONSC 1238, is a decision of the Superior Court of Justice and is precisely on point, in that it deals with the jurisdiction of a CM judge to hear an application under s. 278.3. Goldstein J. made the following ruling, at par. 8:

In my respectful view, when s. 278.3 is read with s. 551.3, Parliament’s intent is that a case management judge is empowered to hear applications under s. 278.2. Parliament did not limit the scope of a case management judge’s authority. The exception — s. 551.7 — deals with separate trials of accused persons with related pre-trial issues.

12In his ruling, Goldstein J. commented on the challenges faced by the court in a busy jurisdiction such as Toronto, in endeavouring to schedule applications well in advance of trial before the same judge who will be trying the case. Similar challenges are faced in smaller regions such as the Southwest, where different judges circuit into smaller centres to deal with sittings that are scheduled for two weeks at a time four or five times each year. Given that the vast majority of the trial work in our court involves allegations of sexual assault, which frequently generate applications under s. 278, it would create a scheduling nightmare if a judge who is scheduled to preside in a particular judicial centre at a particular sittings also needed to be taken away from other sitting commitments elsewhere in the region to hear any s. 278 applications 3 to 6 months in advance. There can be little doubt that Parliament’s intention in creating the position of CM judge, and giving them the powers of a trial judge, was to provide a means whereby such scheduling nightmares could be avoided. All of this makes sense in the context of a post-Jordan world, where the court must strive to find efficiencies to ensure that the Charter rights of accused persons to a trial within a reasonable time are not infringed.

13I agree with Goldstein J.’s conclusion that a CM judge has jurisdiction to hear a pretrial application under s. 278.3. In my view, there is no conflict between s. 278.3 and s. 551.3, and they can both be read harmoniously.

14The starting point is s. 278.3. It requires that the application be brought before the judge before whom the accused is, or will be, tried. This raises the question, who is the trial judge?

15Section 551.3(1) answers that question. It provides that the CM judge, “as a trial judge”, exercises the powers that a trial judge has at the pre-evidentiary stage of proceedings. Thus, the CM judge is expressly designated as a trial judge for purposes of adjudicating the disclosure and admissibility issues that arise in an application under s. 278.3.

16If there were any doubt about this interpretation, s. 551.3(3) states that when the CM judge exercises the power referred to in paragraph (1)(g), “he or she is doing so at trial”. Thus, the combination of these two sections don’t merely provide that the CM judge is exercising the powers of a trial judge. They go further, and state that the CM judge is the trial judge when carrying out the duties specified in s. 551.3(1)(g). Thus, the requirements of s. 278.3 are met, and the two sections are in harmony.

17I am satisfied that, as CM judge, I have jurisdiction to hear this application.

T. A. Heeney J.

Released: March 12, 2026

CITATION: R. v. Bloxsidge, 2026 ONSC 1492