R. v. Smith, 2026 ONSC 40 — Superior Court of Justice | minicounsel

CITATION: R. v. Smith, 2026 ONSC 40

COURT FILE NO.: CR-26-102078-00MO

DATE: 2026-03-31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

BRIAN SMITH

COUNSEL:

Teresa Donnelly and Alanna Fedak-Tarnopolsy, for the Applicant

Bruce Daley, for the Respondent

HEARD: January 22, 2026

PUBLICATION RESTRICTION NOTICE

This matter is subject to a publication ban pursuant to section 486.4 of the Criminal Code of Canada.

The Honourable Justice Catrina D. Braid

REASONS ON CERTIORARI APPLICATION

On application for certiorari from the ruling of Justice C. Parry of the Ontario Court of Justice dated November 4, 2025.

I. OVERVIEW

1This ruling concerns the jurisdiction of the Ontario Court of Justice (“OCJ”) to make orders appointing counsel for the complainant in sexual offence pretrial proceedings where the complainant has a statutory right to be represented by counsel.

2Brian Smith (the “respondent”) is charged with sexual assault and has elected trial by judge alone in the OCJ. The respondent brought a pretrial application pursuant to ss. 276, 278.92 and 278.93 of the Criminal Code, seeking a determination whether certain evidence related to the complainant is admissible at the respondent’s trial. In advance of that pretrial application, the Crown applied for an order appointing counsel for the complainant. On November 4, 2025, Parry J. (the “application judge”) held that the OCJ did not have jurisdiction to make the order sought and dismissed the application.

3The Crown brought an application for certiorari (seeking to quash the application judge’s decision), mandamus (directing the OCJ to reconsider and exercise jurisdiction to appoint counsel for the complainant on its merits), and seeking a declaration that the OCJ has jurisdiction to appoint counsel for the complainant for matters in sexual assault trials where the complainant has a statutory right to be represented by counsel. In the alternative, the Crown seeks an order appointing counsel for the complainant, pursuant to the Superior Court’s inherent jurisdiction. The respondent consents to the orders sought.

4Upon the completion of submissions on January 22, 2026, I signed an order appointing counsel for the complainant and reserved my decision on the remaining relief sought. As a result, the Crown is no longer seeking an order for mandamus to remit the matter back to the OCJ.

5The following issues arise on this certiorari application:

A. Does the OCJ have jurisdiction to appoint counsel for the complainant?

B. Was a jurisdictional error made by the application judge?

C. Should the remedy of certiorari be granted?

6For the reasons set out below, I find that the OCJ has jurisdiction to appoint counsel for the complainant, and that the application judge committed a jurisdictional error when he refused to sign the order on jurisdictional grounds. I therefore make an order quashing the decision.

II. ANALYSIS

A. Does the OCJ Have Jurisdiction to Appoint Counsel for the Complainant?

7In the case of statutory courts, “the authority to control the court’s process is necessarily implied in the grant of power to function as a court of law”: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19. As the Supreme Court confirmed in Cunningham, at para. 19, statutory courts can apply a “doctrine of jurisdiction by necessary implication”, which was defined in ATCO Gas & Pipeline Ltd. v. Alberta (Energy & Utilities Board, 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51:

... the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime...

8A review of the relevant Criminal Code framework and purposes confirms that the OCJ has jurisdiction, by necessary implication, to appoint counsel for sexual assault complainants. This is the same conclusion reached by Justice Latimer in R. v. B.C.S., 2019 ONCJ 467.

i. Legislative Framework

9For certain sexual offence pretrial proceedings, Parliament has legislated that “the complainant or witness…may appear and make submissions at the hearing” and “the judge shall, as soon as feasible, inform [that complainant or witness] of their right to be represented by counsel.” The Criminal Code recognizes the interests of complainants, granting them standing, a right to participate, and a right to be represented by counsel in the following situations:

i. Where the accused seeks production of a private record of a sexual assault complainant or witness pursuant to ss. 278.2(1) and 278.3(1), the complainant’s right to be represented by counsel is legislated pursuant to s. 278.4(2.1).

ii. Where the accused seeks to adduce a private record of a sexual assault complainant that is in the possession of the accused pursuant to ss. 278.92(2) and 278.93(1), the complainant’s right to be represented by counsel is legislated pursuant to s. 278.94(3).

iii. Where the accused seeks to adduce evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge pursuant to ss. 276(2) and 278.93(1), the complainant’s right to be represented by counsel is legislated pursuant to s. 278.94(3).

10The pretrial applications referred to by the subsections above require judges to consider factors such as:

The interests of justice, including full answer and defence: s. 276(3)(a), s. 278.5(2)(a) and s. 278.92(3)(a);
Society’s interest in encouraging the reporting of sexual offences: s. 276(3)(b), s. 278.5(2)(f) and s. 278.92(3)(b);
The need to remove from the fact-finding process any discriminatory belief or bias: s. 276(3)(d), s. 278.5(2)(d) and s. 278.92(3)(e);
The potential prejudice to the complainant’s personal dignity and right of privacy: s. 276(3)(f), 278.5(2)(e) and s. 278.92(3)(g);
The right of the complainant and of every individual to personal security and to the full protection and benefit of the law: s. 276(3)(g) and s. 278.92(3)(h); and
The integrity of the trial process: s. 278.5(2)(h).

11Since 1997, complainants in sexual assault offence trials have had the right to appear, make submissions, and be represented by counsel in applications to access the complainant’s private records. Further, since 2018, complainants have been entitled to be represented by counsel in hearings relating to the admissibility of sexual history evidence and in applications to adduce private records of the complainant which are in the possession of the accused.

ii. Purpose of Legislative Framework

12In the vast majority of sexual assault cases, the complainant is female, and the perpetrator is male. Sexual assault is a violent assault on human dignity and a denial of equality for women: R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, at pp. 648-649; R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595, at p. 669.

13The current Criminal Code provisions form part of a continuing legal evolution aimed at removing discriminatory reasoning that has long operated unjustly toward sexual assault complainants, mostly women. These provisions protect trial fairness, which must be assessed from both the perspective of the accused and of society more broadly: R. v. C.M.G., 2016 ABQB 368, at paras. 56-65; R. v. Barton, 2019 SCC 33, at para. 83.

14Complainants have the right to privacy and equality under ss. 8, 15 and 28 of the Canadian Charter of Rights and Freedoms: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at paras. 11 and 28; R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, at paras. 62 and 77. An order for the production of documents is a seizure, and an unreasonable search and seizure of a complainant’s records violates her right to privacy protected under s. 8: Mills, at paras. 62 and 77. Further, the equality protections in ss. 15 and 28 of the Charter should be taken into account in determining the reasonable limits that should be placed upon the cross-examination of a complainant; she should not be “unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system”: Osolin, at pp. 669-70.

15The intimate nature of sexual assault heightens the privacy concerns of the complainant. With respect to disclosure, complainants are placed in a disadvantaged position as compared with the victim of a different wrong. Without procedural protections, the result may be that the victim of sexual assault does not obtain the equal benefit of the law to which s. 15 of the Charter entitles her. She is doubly victimized, initially by the sexual assault and later by the price she must pay to claim redress: M. (A). v. Ryan, 1997 403 (SCC), [1997] 1 S.C.R. 157, at para. 30.

16The core objectives of the legislative scheme in ss. 276-278.94 of the Criminal Code are to:

i. Encourage the reporting of sexual offences by protecting the dignity, equality, security, and privacy interests of complainants;

ii. Recognize the prevalence of sexual violence in order to promote society’s interest in encouraging victims of sexual offences to come forward;

iii. Promote the truth-seeking functions of trials, including by removing harmful myths and stereotypes;

iv. Protect the integrity of the trial by excluding irrelevant and misleading evidence; and

v. Protecting the accused’s right to a fair trial.

Barton, at para. 74; R. v. J.J., 2022 SCC 28, at para. 138.

17Myths and stereotypes about sexual assault complainants jeopardize the courts’ truth-finding function, and undermine a fair trial for the accused, the complainant and the public: R. v. Kruk, 2024 SCC 7 at para. 43.

18The objectives of the legislative scheme must be kept in mind when determining whether the OCJ has jurisdiction to make orders appointing counsel for the complainant.

iii. Conflicting Decisions in the OCJ

19Prior to the application judge’s decision in the court below, the OCJ has considered the question as to the jurisdiction to appoint counsel for complainants in at least two cases: R. v. B.C.S., and R. v. Z.K., 2025 ONCJ 273. The application judge relied on the latter. For the reasons set out below, I find that the application judge was in error when he followed R. v. Z.K. and in distinguishing R. v. B.C.S.

20In R. v. B.C.S., Latimer J.¹ considered the jurisdiction of the OCJ to appoint counsel for a complainant who sought representation during a legal proceeding inquiring into her sexual history. Latimer J. found that he had jurisdiction to appoint counsel based on his “inherent procedural jurisdiction to make orders that are practically necessary to ensure that the proceedings they are statutorily mandated to conduct are administered justly and fairly”: at para. 7. Latimer J. relied on the “doctrine of jurisdiction by necessary implication” and found that appointing counsel for sexual assault complainants fell within the OCJ’s implied power to control its own process: at paras. 5-9.

21In R. v. Z.K., Moore J. noted that the Criminal Code does not say that the court may appoint state-funded counsel for the complainant. He pointed out that Parliament could have expressly allowed appointment orders for complainants, such as it did under s. 486.3 permitting the appointment of counsel to cross-examine a witness when the accused is unrepresented. Moore J. also stated that the Attorney General could fund complainant’s counsel without a court order: R. v. Z.K., at paras. 11 and 17.

22Moore J. noted that even accused persons, who have a robust constitutional right to counsel, do not automatically receive court-ordered state-funded counsel. The accused must meet the test under R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 (ONCA), including financial eligibility and necessity of representation by counsel for trial fairness: R. v. Z.K., at para. 12.

23Moore J. distinguished the B.C.S. decision, relying on the fact that both the complainant and defendant in B.C.S. were minors, and that Latimer J. was sitting as a youth court judge for the purpose of the Youth Criminal Justice Act: R. v. Z.K., at para. 13. Moore J. “[did] not believe that Justice Latimer meant for his [B.C.S.] decision to be relied on as an authority that such order should be made in every case where the complainant has standing”: R. v. Z.K., at para. 14. Accordingly, the special protections and orders for minors under the Youth Criminal Justice Act meant that the B.C.S. decision did not provide him with jurisdiction to appoint state-funded counsel because the complainant in his case was not a minor: R. v. Z.K. at paras. 13-15.

24I disagree with this analysis. As noted by Latimer J., his designation as a youth court judge was irrelevant to his inquiry into the jurisdiction of a provincial court in appointing counsel for a complainant because a youth court judge retains the same “jurisdiction and powers” that a provincial court judge would otherwise possess: R. v. B.C.S. at para. 4; Youth Criminal Justice Act, s. 14(6).

25Nevertheless, Moore J. found that the OCJ lacks jurisdiction to appoint state‑funded counsel for complainants and dismissed the application.

vi. Legal Aid Ontario’s Funding for Complainant’s Counsel

26For decades, judges in the OCJ and the Superior Court of Justice have routinely made orders appointing counsel for complainants at pretrial proceedings. In Ontario, a sexual assault complainant will be represented by state-funded independent legal counsel once the court makes an order for the appointment of counsel. A 2019 letter from Legal Aid Ontario (contained in the Application Record before me), states:

The protocol, and the court orders that flow from it, provide a streamlined process by which complainants can be provided with counsel of choice so they can meaningfully participate in hearings in which they are entitled to participate, without delay [or] interference from the prosecutorial branch and with proper oversight of the expenditure of public funds for that representation.

27These appointments are administered by Legal Aid Ontario without demonstration of financial eligibility. This system facilitates a complainant's access to counsel and the efficient and effective determination of sexual offence pretrial hearings: R. v. R.S., 2019 ONCJ 877, at para. 21.

vii. The OCJ’s Inherent Procedural Jurisdiction

28The OCJ is a statutory court, whose authority to make any order must be derived "expressly or impliedly from its enabling jurisdiction": R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 28. Even when there is no specific statutory authority, a statutory court could make an order if it formed part of the court’s implied power to control its own process to administer justice fully and effectively. This is part of the court’s trial management powers and ensures that trials proceed fairly, effectively and efficiently: R. v. Dunstan, 2017 ONCA 432, at para. 81; R. v. Samaniego, 2022 SCC 9, at paras. 20-21. It is a “fundamental principle that courts must control their own process and be empowered to exercise other powers that are fundamentally necessary to accomplish the role that law assigns them”: Law Society of Ontario v. AA, 2026 ONCA 47, at para. 179.

29As noted above, a statutory court has the authority to apply the “doctrine of jurisdiction by necessary implication” when determining its jurisdiction. The powers conferred by a statute include not only those that are expressly granted but also, by implication, “all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime”: Cunningham, at para. 19, citing ATCO Gas, at para. 51.

30For example, the OCJ has jurisdiction to appoint amicus curiae. The Supreme Court of Canada has described this power as the “jurisdiction implied by the ability of statutory courts to function as courts of law” and derives from the court’s authority to control its own process: Ontario v. Criminal Lawyers Association, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 16. An amicus appointment may be made when it is necessary to permit a particular proceeding to be successfully and justly adjudicated. The authority to appoint amicus is necessarily implied in the power to function as a court of law: Criminal Lawyers Association, at paras. 44, 111-112.

31Like amicus, counsel for the complainant assists the court in making a just determination, by providing submissions about the complainant’s unique perspective on the impact that the admission of the evidence will have on their privacy, dignity, and equality rights, which are directly relevant to the issue of admissibility.

32In R. v. Z.K., Moore J. stated that he is completely in favour of complainants being represented by counsel on these applications as such representation is of “great assistance in deciding such applications”, and that having the complainant represented by counsel is “extremely beneficial to everyone involved in the proceeding”: at paras. 9 and 18. At the hearing in the court below, the application judge stated, “I agree that it is extremely beneficial for all involved for the complainant and respondents to be represented by counsel.” I echo those comments regarding the value added by independent counsel making submissions for a complainant on these applications.

33The criminal trial process can be invasive, humiliating and degrading for complainants, in part because myths and stereotypes continue to be pervasive. Historically, complainants could expect to have every detail of their private lives and character unjustifiably scrutinized in an attempt to intimidate them, embarrass them, and call their credibility into question. Eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. The Supreme Court of Canada in Barton issued a call to action to “do better”; and, in J.J., stated that “[more] needs to be done”: R. v. Barton, at para. 1; R. v. J.J., at para. 2.

34Parliament has made changes to trial procedure, attempting to balance the accused’s right to a fair trial with the complainant’s dignity, equality, and privacy, and the public interest in the search for truth. More needs to be done, since most victims of sexual offences do not report such crimes. For those that do, only a fraction of reported offences result in completed prosecutions: R. v. J.J., at para. 2.

35By granting standing to the complainant and the right to be represented by counsel, Parliament recognized that these proceedings directly impact the complainant’s fundamental interests. Independent legal representation of the complainant is essential to convey the complainant’s unique perspective on the impact that the admission of the evidence will have on their privacy, dignity, and equality rights, which is directly relevant to the issue of admissibility. The complainant’s contribution is different from the Crown’s, which may strengthen the appearance of prosecutorial independence because the Crown no longer bears the burden of representing the complainant’s perspective on whether the records should be admitted: R. v. D.V., 2025 ONCA 67, at paras. 42-46; R. v. J.J., at paras. 177-179.

36The Court of Appeal has recognized that, in sexual offence pretrial proceeding that may adversely affect the rights and interests of vulnerable complainants, allowing the complainant to be self-represented would not serve the administration of justice. In those situations, the court has exercised its discretion to appoint counsel to advocate for that party's interests: Bhajan v. Bhajan, 2010 ONCA 714, at para. 8, note 1.

37Having counsel for the complainant is essential to the mandate of the OCJ to conduct court proceedings justly. Applications in sexual offence cases involving the sexual history or private records of complainants are complex and nuanced. If the order is not made, the complainant may have to litigate these applications alone, without legal training or resources. This places unjust barriers to the participation of sexual assault complainants, which is inconsistent with the Supreme Court of Canada’s recognition of ameliorative efforts to remove barriers that have deterred complainants from coming forward. The orders appointing counsel will permit complainants to meaningfully participate and ensure that applications are adjudicated fairly and on their merits.

38It would be an injustice if complainants were unable to meaningfully exercise their right to be represented by counsel to protect their privacy and personal dignity. Independent legal representation ensures that the complainant’s interests are protected: R. v. T.P.S., 2019 NSSC 48, at paras. 25 and 31.

39Rule 4.1 of the Criminal Rules of the Ontario Court of Justice (“Criminal Rules”) authorizes the court to make any orders “that would assist in ensuring that it is conducted in accordance with the fundamental objective” of the Criminal Rules, which is to ensure that proceedings are dealt with justly and efficiently. Rule 4.1, codified pursuant to s. 482(2) of the Criminal Code, is an express acknowledgment of a procedural power that the OCJ has always possessed: R. v. B.C.S., at para. 8.

40Rule 4.1 is not a free-standing source of authority. The Criminal Rules regulate the procedure and practice in the court that makes them but do not confer jurisdiction: R. v. S.S.S. (1999), 1999 15049 (ON SC), 136 C.C.C. (3d) 477 (ONSC), at para. 47.

41As noted above, I do not accept the reasoning in Z.K., and in the decision below by the application judge, that the minor complainant’s age in the B.C.S. decision somehow creates a limited exceptional circumstance for the appointment of counsel for the complainant. The practical necessities of having counsel for the complainant do not disappear because the complainant and/or the accused are of age. Otherwise, the inherent procedural jurisdiction to make orders that are practically necessary creates different rights for different complainants, which cannot be the law.

42Courts have recognized the unique harms and vulnerabilities of complainants in sexual assault prosecutions. The complainant is not a party to the criminal proceedings and is present before the court (sometimes not voluntarily) as a result of reporting that she has been the victim of a serious crime. If the court does not make orders appointing counsel, a complainant would be required to pay for a lawyer or reveal private financial information and apply for Legal Aid in order to protect her rights to privacy and dignity. A complainant requires legal counsel to navigate the complicated evidentiary provisions engaged in this type of pretrial motions.

43The OCJ has inherent procedural jurisdiction to appoint counsel for the complainant for pretrial matters in sexual assault cases where the complainant has a statutory right to be represented by counsel. It is open to the OCJ judge to make this order that is practically necessary to ensure that the proceedings are administered justly and fairly. The jurisdiction of that court is grounded in its trial management authority to control its own process. Granting these orders gives meaningful effect to the statutory regime’s intended objectives, upholds the Charter rights of vulnerable complainants, and reinforces public confidence in the administration of justice by protecting trial fairness and the truth-seeking function of the trial.

B. Was a Jurisdictional Error Made in the OCJ?

44In the OCJ, the application judge held as follows:

i. The court considered the fact that it lacks inherent jurisdiction to appoint counsel for an accused. Instead, an accused must seek a remedy pursuant to Rowbotham and ss. 7 and 24(1) of the Charter. The application judge stated that this “begs the question, if the Court lacks jurisdiction to appoint counsel for one party to the proceedings, where does the jurisdiction arise to appoint counsel for another party to the proceedings, if that jurisdiction does not arise from a statute?” The application judge stated that he failed to see “how inherent jurisdiction to appoint counsel for one party can exist but not exist for another when both equally have the same right to counsel”: Transcript of Proceedings, p.16, line 9 to p.17, line 8.

ii. The court noted that Parliament could have enacted a provision that expressly gave the complainant the right to counsel, and a corresponding provision granting the court statutory jurisdiction to appoint counsel. Parliament’s failure to do so is glaring, given Parliament's clear intention and express authorization to do in other contexts, such as in 486.3 of the Criminal Code: Transcript of Proceedings, p.17, lines 10-20.

iii. The court agreed with Moore J.'s assessment in Z.K. that the decision in B.C.S. is not broad authority that such orders to appoint counsel could be made in every case where the complainant has standing. The court also drew a distinction between matters before the Youth Criminal Justice Court in which there is a right to appoint counsel for youths charged with an offence as compared to matters in adult court, where no statutory right to appoint counsel exists for the accused: Transcript of Proceedings, p.17, line 22 to p.18, line 11.

iv. The application judge concluded that he lacked jurisdiction to make an order appointing counsel for the complainant and denied the application: Transcript of Proceedings, p.18, line 32 to p.19, line 2.

45I find that the application judge incorrectly relied on and adopted the decision in R. v. Z.K. For the reasons set out above, the OCJ has jurisdiction to make the order. By failing to recognize his jurisdiction to appoint counsel, the application judge failed to consider whether such an appointment should be made, despite acknowledging the salutary effects of such an order.

46In addition, the application judge erred when he stated (without citing any authority), that “for what it is worth, I view that the case law is indicating that the Superior Court similarly lacks jurisdiction to appoint counsel for parties to cases”: Transcript of Proceedings, p.18, lines 6-9.

47The application judge had jurisdiction to make the order. To the extent that he declined to make the order because of a lack of jurisdiction, he was in error.

C. Should the Remedy of Certiorari Be Granted?

48The extraordinary remedy of certiorari is only granted in limited circumstances, for example, where an inferior court makes a jurisdictional error, including jurisdictional default or excess. The Superior Court has discretion whether or not it should be granted, even if there was a jurisdictional error. A jurisdictional error is distinct from a legal error on the merits, which should be addressed on appeal after trial. Jurisdiction has to do with the authority to decide an issue or perform a duty, not the nature or correctness of the decision made: R. v. Vasarhelyi, 2011 ONCA 397, at para. 52.

49The application judge committed a jurisdictional error. On this application for certiorari, I quash the decision of the lower court.

50To the extent that the request for certiorari may arguably be moot because I made an order appointing counsel, the issue of whether the OCJ has jurisdiction to make such orders is still a live issue. This ruling is intended to assist OCJ courts in determining future applications to appoint counsel.

51I have previously found that the OCJ has jurisdiction to appoint counsel for the complainant in sexual assault trials where they have a statutory right to be represented by counsel. The orders to appoint counsel for a complainant should generally be made as a matter of course, except in exceptional circumstances when the court is of the opinion that the order would interfere with the proper administration of justice.

III. CONCLUSION

52For all of these reasons, the lower court decision is quashed.

Braid J.

Released: March 31, 2026