R v Rouse, 2026 SKCA 91: Saskatchewan Court of Appeal Reinforces Limits on the Role of Complainant’s Counsel

Overview 
In R v Rouse, 2026 SKCA 91 [Rouse], the Saskatchewan Court of Appeal underscored the limited role that complainants and their counsel play in hearings under s. 278.94 of the Criminal Code.

The Court of Appeal set aside Mr. Rouse's convictions and ordered a new trial after finding that the Trial Judge erred in his handling of Mr. Rouse’s pre-trial applications under ss. 276 and 278 of the Criminal Code. The Court of Appeal concluded that the complainant's counsel repeatedly strayed beyond the limited role contemplated by Parliament, advancing arguments directed to credibility, the defence theory, and the ultimate merits of the case. In doing so, complainant’s counsel effectively assumed the role of a second prosecutor, undermining the fairness of the proceedings and contributing to a miscarriage of justice.

Complainants have Participatory Rights, Not Party Status 
While Parliament has granted complainants participatory rights in hearings under s. 278.94 of the Criminal Code, Rouse reiterates that those participatory rights are strictly limited and circumscribed.

Relying on R v J.J., 2022 SCC 28, the Court of Appeal emphasized that complainants are not parties to criminal proceedings. Their role in hearings under s. 278.94 is confined to protecting their own privacy, dignity, and equality interests that may be affected by the admission of evidence that is the subject of the application in question.

They are not entitled to adduce evidence or argue whether an accused is guilty, whether a defence theory is credible, whether a witness should be believed, or how the evidence should ultimately be assessed at trial.

Complainants’ Counsel Are Not “Second Prosecutors”
The Court of Appeal was critical of the way complainant's counsel participated in the proceedings in this case. Rather than confining submissions to admissibility issues, complainant’s counsel advanced arguments attacking the defence theory, promoted the complainant's credibility, criticized defence counsel's conduct, and relied on social science materials directed at the merits of the case. The Court of Appeal found that this crossed a clear line.

In pointed language, the Court of Appeal concluded that the complainant’s counsel had improperly “stepped into the fray” and that counsel had effectively assumed the role of an additional prosecutor (Rouse at para 74).

The Trial Judge’s Gatekeeping Role
Rouse underscores the obligation of trial judges to actively manage the scope of complainant and their counsel’s participation. Trial judges must ensure that submissions remain confined to the admissibility issues contemplated by ss. 276 and 278 and do not stray into arguments respecting credibility, factual findings, or establishing guilt.

The Court of Appeal held that the Trial Judge erred in principle in this case when he failed to intervene.  

Court of Appeal’s Decision
The Court of Appeal ultimately concluded that the improper participation of complainant's counsel in this case was not harmless.

The Court of Appeal held that the Trial Judge's decision to permit improper submissions from complainant's counsel, coupled with the erroneous restrictions imposed on the defence's cross-examination concerning records that were the subject of the pre-trial applications, interfered with Mr. Rouse's right to make full answer and defence. The resulting prejudice was such that "public confidence in the fairness of the trial" was called into question (Rouse at para 85). The Court therefore concluded that a miscarriage of justice had occurred and ordered a new trial.

Commentary
For defence counsel, Rouse provides helpful appellate authority for resisting attempts by complainants' counsel to expand their role beyond the narrow purposes contemplated by the Criminal Code.

More broadly, the decision reaffirms a foundational principle of our criminal justice system: criminal proceedings are prosecuted by the Crown and defended by the accused. While complainants may be afforded participatory rights in s. 278.94 hearings related to protecting of their privacy, dignity, and equality interests, those rights do not confer party status or permit advocacy on the ultimate issues at trial.

Rouse serves as an important reminder that complainant participation in hearings under s. 278.94 must remain within its proper scope and that trial judges are responsible for ensuring those limits are respected.

Darren Kraushaar and Jessica Bihun-Krupski of McDougall Gauley’s Defence Group represented Mr. Rouse at trial and on appeal and have experience defending clients facing serious criminal allegations and advancing complex criminal appeals.