Probative value of some text messages outweighs privacy concerns: Ontario Court of Justice

In a case arising from a woman’s complaint against her former husband, the Ontario Court of Justice decided which text messages between them constituted admissible evidence for his upcoming criminal trial, with probative value that outweighed privacy concerns. 

R. v. J.M., 2026 ONCJ 170, involved pre-trial applications assailing the admissibility of evidence in the applicant ex-husband’s trial. 

At a stage one ruling, the court addressed the initial considerations for a defence application under s. 278.92/.93 of the Criminal Code. The court said it could admit the following categories of the ex-spouses’ messages, which could proceed to stage two: 

• tabs 1–12, 14, 16–17, 20–22, 24, and 26, which the Crown conceded met the statutory requirements 
• tabs 18–19 and 28, a contested category of messages that the applicant alleged were relevant to credibility and a motive to fabricate 

Also at the stage one ruling, the court dismissed a Crown application seeking to introduce extrinsic discreditable conduct. 

The stage two ruling addressed whether the court could admit as trial evidence the electronic communications in the applicant’s possession that had survived scrutiny at the first stage. During oral submissions, he abandoned his application regarding tabs 5, 9, 10, 12, 20, and 21. 

Thus, the court still had to consider whether 17 sets of messages – tabs 1–4, 6–8, 11, 14, 16–19, 22, 24, 26, and 28 – were admissible under the test in s. 278.92(2) and the factors in ss. 278.92(3)(a) to (i) of the Criminal Code. 

The court recognized that the applicant wanted to adduce evidence that could undermine the appearance of fairness to the complainant, including her reasonable expectation of privacy in the messages. 

Admissibility decision

The Ontario Court of Justice partly allowed the applicant’s stage two application. The court ordered that the parties: 

• should not elicit tabs 1–4, 6–8, 11, 14, 16–17, 24, and 26 at the applicant’s trial 
• could elicit tabs 18–19, 22, and 28 at his trial, subject to the usual evidentiary rules 

First, the court found the following sets of messages inadmissible: 

• tabs 1–3 and 6–7, which allegedly rebutted the complainant’s general characterization of the relationship 
• tabs 1, 3, 8, 24, and 26, which allegedly rebutted the complainant’s argument that she was solely responsible for all the housework 
• tabs 4, 14, and 16–17, which allegedly rebutted the complainant’s financial abuse claim 
• tab 11, which allegedly contextualized the complainant’s characterization of the applicant as controlling about visitors to the house 

The court explained that those messages, which focused on mundane, trivial, and interpersonal matters: 

• were irrelevant and insufficiently connected to the trial issues 
• lacked meaningful bearing on the specific allegations 
• risked distracting from the material issues 
• risked inviting impermissible reasoning based on general relationship dynamics 
• had minimal probative value, not significantly outweighed by the danger of prejudice to the proper administration of justice 

Second, the court found the following sets of messages admissible and helpful in assessing credibility, subject to redaction: 

• tabs 18, 19, and 28, which allegedly showed that the complainant made accusations against the applicant whenever there was a breakdown in their relationship 
• tab 22, allegedly contradicting the complainant’s claim that the applicant withheld their children, when he supposedly kept them away from her for legitimate reasons 

Despite the privacy concerns that subsisted, the court found that those messages had potentially significant probative value, as they directly concerned the relationship breakdown and the applicant’s theory that the complainant had a motive to fabricate allegations at times of deterioration in their relationship. 

Lastly, the court noted that it would hear counsel’s submissions about the scope and particulars of any suggested redactions to the second category of electronic communications.