CITATION: R. v. J. (B.), 2026 ONSC 267
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
B.J.
Defendant
COUNSEL:
S. Dickson, for the Crown
G. Clark, for the Defendant
HEARD: September 23, 2025
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.
REASONS FOR DECISION ON APPLICATION
Ellies J.
OVERVIEW
1The defendant, B.J., is charged with seven sexual offences relating to his daughter (“the complainant”). The allegations span a period from 1991, when the complainant was a small child, until 2015, when she was a young adult.
2The Crown applies under s. 486.2(1) Criminal Code, R.S.C. 1985, c. C-46 (“the Code”), for an order permitting the complainant to testify from outside the courtroom on the basis that she may have difficulty communicating her evidence by reason of a mental disability. In the alternative, the Crown seeks a similar order under s. 486.2(2) on the basis that testifying from outside the courtroom would facilitate the giving of the complainant's evidence or would otherwise be in the interests of the proper administration of justice.
3For the following reasons, the application is granted.
BACKGROUND
4The Crown's application is supported by evidence from the complainant and from her social worker. The complainant's evidence has been provided in the form of an affidavit. The evidence of the social worker has been provided in the form of a letter attached to that affidavit.
5The complainant deposes:
(a) that she has been diagnosed with “Complex Post[-]Traumatic Stress Disorder” (“CPTSD”);
(b) that the disorder relates “specifically…to the charges before the court”;
(c) that when it is triggered, she struggles with “auditory processing” and can have difficulty speaking;
(d) that she testified at the preliminary hearing on the charges held in July 2021 via Zoom;
(e) that seeing the defendant during her preliminary hearing testimony caused her to suffer certain physical symptoms, including her teeth chattering, as well as the beginning of a “panic attack”; and
(f) that she placed a “sticky note” she had with her at the time over the image of the defendant on her screen in order to be able to testify.
6The complainant also deposes:
(g) that she “expects” that it will be harder for her to testify at the trial because she will be in the same building as the defendant, from which I infer that she was testifying from somewhere outside of the courthouse during the preliminary hearing; and
(h) that if she has to testify in the courtroom, she “would be terrified and probably freeze up”.
7The social worker's position is expressed in one paragraph in her letter of April 29, 2025, in which she writes:
Due to significant and ongoing issues with anxiety and symptoms of trauma, it is my professional opinion that appearing in court in person would cause [the complainant] considerable emotional stress. This level of anxiety may severely impact her ability to provide coherent and effective testimony, potentially affecting both her wellbeing (sic) and the administration of justice.
8The social worker “strongly” recommends that the court grant the complainant permission to testify via CCTV.
LEGISLATIVE FRAMEWORK
9Section 486.2 requires the court in some circumstances, and permits the court in others, to allow a witness to testify either from behind a screen or from outside the courtroom. The relevant portions of the section read as follows:
486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider
(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;
(f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;
(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(h) any other factor that the judge or justice considers relevant.
(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).
10Under s. 486.2(1), there are three facts which must be established before an order for testimonial accommodation can be made for a witness over the age of 18 years:
(1) that the witness is (ordinarily) able to communicate evidence;
(2) that the witness may have difficulty communicating evidence at the proceeding; and
(3) that the difficulty is because of a mental disability.
11The wording of the section makes it clear that, where the Crown is the applicant, it bears the onus of establishing these three factual prerequisites. It has been held that the burden on the Crown is that of proof on a balance of probabilities: R. v. J.M., 2004 ONCJ 304, at para. 6. It has also been held that a presumption arises in favour of granting the order requested once the first three factual prerequisites have been established: R. v. T. (S.B.), 2008 BCSC 711, at para. 35; R. v. J.D., 2022 ONSC 2540, at para. 10.
12There is a fourth factual issue that arises under s. 486.2(1): namely, whether granting the order requested would interfere with the proper administration of justice. However, it is not clear from the section, nor from the jurisprudence to which I have been referred, who bears the onus with respect to that issue, if anyone.
13Given the mandatory language in the provision, it seems to me that, once the Crown has established the factual prerequisites referred to above, the onus should then shift to the defendant to rebut the presumption, also on a balance of probabilities. Placing this onus on the defendant would not give rise to any potential infringement of his right to be presumed innocent under s. 11(d) of the Charter: R. v. Levogiannis, 1993 47 (SCC), [1993] 4 S.C.R. 475; Sidney N. Lederman, Michelle K. Fuerst and Hamish Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th. Ed. (Toronto: LexisNexis), at § 4.33 and 4.103. I note from other cases that such an onus has been placed on a defendant implicitly, if not expressly: R. v. V. (W.), 2016 ONSC 874, at para. 29.
14There is no issue in this case that the complainant can ordinarily communicate the evidence. In the discussion that follows, I will address the remaining issues in the order in which I have listed them.
DISCUSSION
15The defendant submits that the Crown has not established either that the complainant may have difficulty communicating her evidence or that the difficulty is due to a mental disability. For that reason, he submits that the application should be dismissed. In the alternative, he submits that the complainant should be required to testify in the courtroom, but behind a screen. As I will explain, I am unable to agree with any of these submissions.
The witness may have difficulty communicating evidence at the proceeding
16The defendant submits that the Crown's evidence gives rise to nothing more than a mere possibility, rather than a probability, that that the complainant may have difficulty communicating the evidence. He relies on two decisions of the Court of Appeal in support of his submission, both of which I believe are distinguishable.
17In the oldest of the two decisions, R. v. M. (P.) (1990), 1990 6643 (ON CA), 1 O.R. (3d) 341 (Ont. C.A.), the trial judge had ordered that the complainant could testify from behind a screen under the predecessor to what became s. 486(2.1) by the time the appeal was heard. Section 486(2.1) read:
486.(2.1) Notwithstanding section 650, where an accused is charged with an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 170, 171, 172, 173, 271, 272 or 273 and the complainant is, at the time of the trial or preliminary inquiry, under the age of eighteen years, the presiding judge or justice, as the case may be, may order that the complainant testify outside the court room or behind a screen or other device that would allow the complainant not to see the accused, if the judge or justice is of the opinion that the exclusion is necessary to obtain a full and candid account of the acts complained of from the complainant.
18In M. (P.), the Court of Appeal overturned the trial judge's decision on the basis that the evidence before the judge was not capable of providing the necessary foundation for the order he had made. However, the trial judge’s decision was not overturned because of issues relating to the strength of the evidence introduced in support of the order made, it was overturned because the Crown had not introduced any evidence in support of that order: M. (P.), at para. 15.
19The most recent of the two decisions relied upon by the defendant is the decision in R. v. Textor (1994), 75 O.A.C. 396, [1993] O.J. No. 3181. Textor is more on point. In Textor, the trial judge had made an order under s. 486(2.1), set out above, permitting a 12-year-old complainant to testify from behind a screen. The Court of Appeal overturned the trial judge's decision on the basis that, “[t]aken at its highest the Crown's evidence in support of the use of a screen was that the complainant ‘might’ not be able to give evidence without a screen and ‘might’ freeze”: Textor, at para. 6.
20Unfortunately, the Court of Appeal’s decision in Textor does not contain any reference to the substance of the evidence that was before the trial judge. Nonetheless, the case is distinguishable on a legal basis, if not on a factual one.
21In January 2006, Parliament made substantial amendments to the provisions of the Code dealing with witness testimonial accommodation. Section 486(2.1) became s. 486.2(1). The new section eliminated the narrow scope of charges in which such orders could be made and, instead, expanded it to include all charges. It also made such orders mandatory, rather than discretionary, in the case of witnesses under the age of 18 years and those with a mental disability that might interfere with their ability to communicate the evidence. These changes signaled Parliament's intention to better protect children and vulnerable witnesses from the effects of testifying in court: R. v. S.B.T., 2008 BCSC 711, at paras. 31-34; R. v. V. (W.), 2016 ONSC 874, at para. 13. In my view, it would be a mistake to apply decisions that were made prior to the amendments where those decisions reflect the philosophy that prevailed at the time, as Textor does.
22In interpreting s. 486.2(1), it is important not to mistake what the Crown must prove with the degree to which the Crown must prove it. As I indicated, the Crown bears the onus of proof and must do so on a balance of probabilities. This means that the Crown must prove that it is likely that the complainant may have difficulties communicating the evidence at the proceeding. The Crown is not obliged to prove that is likely the complainant will have difficulties.
23The Crown has met this burden. The complainant's evidence that she had difficulty testifying even on Zoom has not been challenged. Nor has her evidence that she would be terrified if she had to testify in the courtroom. While her evidence that she would probably freeze up is necessarily speculative, it seems likely, based on these two unchallenged foundational facts.
24Even if I am wrong in my interpretation of what the Crown must prove, it is my view that the evidence relied upon by the Crown goes beyond establishing the mere possibility that the complainant may have difficulty communicating the evidence and establishes, instead, that she likely will have difficulty doing so.
The difficulty is because of a mental disability
25The Crown submits that the words “mental disability”, which are not defined in the Code, are not to be equated with the words “mental disorder”, which are: Code, s. 2. I agree. Instead, the words “mental disability” are to be given a broader, more liberal interpretation: R. v. Hayes, [1993] Y.J. No. 18, at para. 5; R. v. Lanthier, 1997 CarswellOnt 4038 (Ont. C.J.), at para. 71. As a result, the Crown is not obliged to call expert evidence to establish the presence of a mental disability: Lanthier, at para. 62; R. v. Dykes, 2018 ONSC 3405, at para. 58.
26The defendant takes no issue with these principles. However, he submits that, because a mental disability may consist of a mental disorder, once the Crown relies on the existence of a mental disorder to satisfy this first prerequisite, it must prove that disorder. He submits that the Crown has failed to prove that the complainant suffers from CPTSD because it has offered no expert evidence on the issue. Again, I am unable to agree with this submission.
27I do agree that, where the Crown relies only on evidence that a witness has been diagnosed with a particular mental disorder, it may be necessary for the Crown to introduce expert evidence about the effect of that disorder on the witness. Otherwise, it is not possible for the court to know how the disorder affects the witness's ability to give evidence or how a particular testimonial accommodation will mitigate the effect of the disorder.
28However, that is not this case. In this case, the Crown has introduced evidence from the complainant herself about how the disorder affects her. The medical label for her condition is not important. Nor is it necessary, as the defendant submits, to accept the complainant’s evidence that the disorder arises from the alleged abuse by the defendant. The symptoms described by the complainant could arise from any number of causes, provided that they manifest themselves when the complainant is required to testify without the accommodation requested. They could arise simply from the fact that she believes her allegations, regardless of their truth. Or they could arise from other abuse, concerning which this court has received evidence in connection with other pre-trial applications: see R. v. J. (B.), 2022 ONSC 6438.
29It is enough that I accept on a balance of probabilities that the complainant suffers the symptoms she describes when testifying in the visual presence of the defendant, which I do.
Whether the use of the testimonial accommodation in question would interfere with the proper administration of justice
30The defendant submits, in the alternative, that the complainant should only be permitted to testify behind a screen, rather than from outside the courtroom. However, such a submission may only be considered if there is evidence that the testimonial accommodation requested will interfere with the proper administration of justice: S.B.T., at paras. 40-42; V. (W.), at paras. 10 and 17. No such evidence has been introduced here.
CONCLUSION
31For the foregoing reasons, the application is allowed. The complainant shall be permitted to testify via CCTV from a location within the courthouse, as requested in the application.
M.G. Ellies J.
Released: January 15, 2026