WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
JEFFREY YOUNG
Before Justice S. G. Pratt
Heard on 16 March 2026
Reasons for Judgment released on 9 April 2026
Lorne Goldstein Counsel for the Crown
Jeffrey Young................................................................. The defendant, on his own behalf
RULING ON POST-TRIAL ABUSE OF PROCESS APPLICATION
1The Defendant Jeffrey Young has brought an application for a stay of proceedings or such other relief as the Court deems just. Before continuing, it is useful to set out the background for this application.
2On 18 September 2025, I found the Defendant guilty of eight counts and not guilty of two counts on information 22-11090. Throughout the trial and at the time of conviction, he was represented by counsel Julie Santarossa.
3Ms. Santarossa brought a successful application to be removed as counsel of record on 24 November 2025. The matter was next addressed on 1 December, at which time a date for sentencing submissions was set. That date remains 22 April 2026.
4On 17 December, the parties were before me to ensure that disclosure had been provided to the Defendant as he was now representing himself. On that date, he also made submissions that “crimes were committed against me” by the police and the Crown in the course of the trial. Initially, I told him I felt this was something he should address in an appeal, not in argument to me at this point in the trial. On further reflection, I determined that the Defendant was likely alleging an abuse of process and seeking relief under the Canadian Charter of Rights and Freedoms, whether he knew to classify it in that way or not. I brought the parties back before me and explained the issue to the Defendant. I invited him to bring the application. Filing dates were set. As the application included allegations against the trial prosecutors, the Crown prudently engaged a prosecutor from outside the region to respond to the application.
5I received three filings: the Defendant’s Form 1 application together with a detailed written argument, a Crown response, and the Defendant’s Reply to the Crown’s response. On 16 March, I invited any further submissions either party may have. On that day, the Defendant filed additional letters from mental health practitioners who had treated him in the past. I made those documents a lettered exhibit at the time as the Crown was appearing virtually and there was no immediate way for him to review them. I told Crown counsel that if he had any issues with the documents once he did receive them, I would hear from him. Counsel has not asked to be heard on this point, so Exhibit A on the application will now be made Exhibit 1.
6This is my ruling on the application.
The Law
7This is not the first abuse of process application to be heard in this proceeding. On 16 January 2024, I granted the Defendant’s application to stay count 11 of the information as an abuse of process (see: R. v. J.Y. 2024 ONCJ 21). The issues in that application are distinguishable from the current situation, but the law remains the same. I adopt the recitation of the law as set out in paragraphs 17-30 of that decision. In summary, I will reproduce paragraphs 26-28 here:
[26] Having established jurisdiction to consider the issue, what is meant by an abuse of process? Following Justice Dubin’s finding in Young, it would be where compelling a defendant to stand trial would violate the fundamental principles of justice that underlie the community’s sense of fair play and decency. That question was also answered by Justice L’Heureux-Dubé, speaking for the majority in R. v. O’Connor, [1995] 4 S.C.R. 411.
[27] The O’Connor decision set out two principles relevant to the present case: first, it confirmed an alleged abuse of process can impact Charter-protected rights. Justice L’Heureux-Dubé noted the specific Charter rights involved may change depending on the nature of the case. Second, there exists a separate path to the finding of an abuse of process that does not relate to trial fairness or specific Charter rights. This residual category of abuse:
…instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.
[28] Justice L’Heureux-Dubé also cited Justice Wilson in R. v. Keyowski, [1988] 1 S.C.R. 657 confirming that an applicant need not show misconduct or improper motive on the part of the Crown before finding an abuse of process.
8Justice Moldaver summarized how courts should view abuse of process in the case of R. v. Babos 2014 SCC 16:
These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para. 73).
9I will consider the grounds raised by the Defendant below, but I can say now that the Defendant’s complaints focus on the main category set out by Justice Moldaver. That is, he is alleging the conduct of the state has compromised the fairness of his trial.
10As to the remedy for this abuse, the Defendant seeks a stay of proceedings, “unless the honourable Judge Pratt deems there is another remedy at this juncture in the proceedings, that can cure the prejudice caused by multiple occurrences of Police and Crown misconduct.”
11To grant a stay of proceedings, I again turn to Justice Moldaver’s decision in Babos, supra, for guidance. This is from paragraph 32 of that decision:
The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:
(1)There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);
(2)There must be no alternative remedy capable of redressing the prejudice; and
(3)Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).
12For a stay of proceedings to be granted, the Defendant must show this is one of the clearest of cases where a stay is necessary (see: O’Connor, supra, at paragraph 68). There may be times when a remedy short of a stay of proceedings will be appropriate, a fact alluded to in step 2 noted above.
13The Defendant has sought a stay of proceedings. He has also, indirectly, sought another remedy that would not dispose of this application but permit its continued argument through the calling of witnesses. I will deal with that alternative request in due course.
Overview
14The Defendant seeks relief based on four areas of concern:
(1) The improper taking of statements by police;
(2) Crown counsel Greco and DC Fedak influencing a witness’s testimony during the trial;
(3) Crown counsel Greco and Brown, and DC Fedak and Doherty counselling perjury; and
(4) Crown counsel Brown misstating evidence.
15I will consider each of these areas in turn.
The Improper Taking of Statements by Police
16The Defendant alleges that the manner in which police obtained statements from complainants tainted their evidence and rendered the trial unfair. Specifically, he argues DC Fedak and Doherty “were derelict in their duty while conducting statements from complainants and similar fact witnesses”. He goes on to list the ways in which their conduct was deficient. They did not “empower full autonomy to the witnesses”, did not inform them of the legal weight of their statements, used suggestive questioning, exhibited tunnel vision to pursue a particular narrative, and abused their power in recruiting complainants.
17As to the first point, the Defendant argues witnesses were not told they were free to leave when they gave their statements. He appears to be suggesting the complainants were under some form of detention when they spoke to police. Further, he alleges they were not given any sort of warning that their statements needed to be the truth and that their words could have a significant impact.
18He argues the officers’ use of leading questions, and suggesting to some complainants what other complainants said, showed tunnel vision and a lack of impartiality. As examples, he noted that in the Complainant J.S.’s statement, it was DC Fedak who first brought up the question of whether she was fearful of the Defendant. DC Fedak also imported something from K.M.’s statement into her questioning of J.S. K.M. had apparently told police the Defendant made a comment about her skin being soft. DC Fedak suggested to J.S. that she had said that. J.S. firmly denied saying anything of the sort.
19The Defendant also argued that the Complainant J.P. referred to the towel the Defendant used to cover her breasts, and that DC Fedak then called it a facecloth. This, he says, tainted J.P.’s evidence. The Defendant’s own materials, however, show that the word facecloth was first used by J.P. DC Fedak simply repeated it back to her.
20There is a further allegation that DC Fedak and the Complainant A.L. were standing oddly close to each other when speaking outside court. He offers no evidence as to what they may have been discussing.
21Finally, the Defendant alleges the police “convinced” A.L. to give a statement. This reinforces the notion that they were actively recruiting and pressuring complainants to come forward. As he says in his materials: “police officers push their narrative and use their power and influence to convince A.L. to get involved and help them by adding herself as a named complainant.” The difficulty for the Defendant on this point is there is no evidence the police convinced A.L. of anything. She said they asked her for a statement. She initially did not want to get involved, but after giving it more thought, she felt she was being selfish by not speaking up. That is why she gave a statement.
22All of the concerns brought up under this heading were known to the Defendant before or during the trial. All could have been brought up in cross-examination of each complainant. Indeed, J.S. was asked about her police statement, albeit on a different aspect of it. So were A.L., A.R., and S.D., The Defendant and his counsel had the statements at the times these witnesses were questioned, and aspects of those statements were put to them. Any questions about their understanding of detention, the importance of telling the truth, or being led on crucial areas could have been explored. For reasons to which I am not privy, they were not.
23The Defendant and his counsel made the choice not to ask the complainants about the areas he mentions in his materials. He cannot now rely on these unexplored areas, taken at face value and without any questioning, to support the notion that police were abusive in their conduct.
24The Defendant also sets out several areas where he says the veracity of the statements should be questioned. All of these alleged inconsistencies were available to be exploited at trial, and several witnesses were in fact asked about inconsistencies. That some remained unasked does not somehow equate to an abuse of process.
25Similarly, speculation about what DC Fedak and A.L. were talking about is no evidence of an abuse of process. It is also not abusive for police to put out a media release, as they did here, asking potential complainants to come forward. This is a common and useful practice that, rather than being an abuse of police authority, empowers complainants to come forward if they think they have been victimized. It then falls to police to investigate and, if the evidence supports it, to lay the appropriate charges.
26I find the concerns raised under this heading, taken individually or cumulatively, do not constitute an abuse of process.
Crown counsel Greco and DC Fedak influencing a witness’s testimony during the trial
27I remind myself the burden in this application rests on the Defendant. It is he who must establish that the conduct of this trial has been an abuse of the Court’s process.
28The evidence he uses to support that claim may be direct or circumstantial. It cannot, however, be based on speculation and appearances. This is the problem he encounters under this heading.
29The Defendant described a scene during a break in the trial. He says that immediately after I left the courtroom, Crown counsel Greco went to a Victim Witness Assistance Program worker and DC Fedak. He says Ms. Greco said something to DC Fedak. His materials state:
After a short time, Ms Fedak leaped up out of her seat and rushed out of the courtroom to go speak to J.P. about her testimony.
30The Defendant offers no evidence at all to support the notions that when DC Fedak left the courtroom, she a) spoke to J.P., or b) spoke to her about her testimony. When that was pointed out in the response filed by the Crown, the Defendant admitted as much in his reply to paragraph 19 of the response:
Regarding comments from paragraphs 17-19 above. The crown counsel here mentions that there is no evidence. There is however potential evidence if Ms Beaulieu, J.P., Ms Greco, and Ms Fedak were called on to give their honest accounts.
31In this passage, the Defendant admits there is presently no evidence as to what took place after DC Fedak left the courtroom. The Court does not deal in conjecture or suspicion. Without any evidentiary basis, it is not a reasonable inference to draw that DC Fedak acted at all inappropriately. I cannot assume the worst, and I cannot permit a fishing expedition to search for “potential evidence”.
32This heading does not support a finding of abuse of process.
Crown counsel Greco and Brown, and DC Fedak and Doherty counselling perjury
33This heading deals exclusively with the evidence of the complainant C.M.
34C.M. gave a statement to the College of Massage Therapists of Ontario (CMTO). Subsequently, she also gave a statement to police. It is this police statement that the Defendant says was improper.
35He argues that before seeking a statement from C.M., the police had her CMTO statement and the Defendant’s response. That response included several text messages. The Defendant claims his responding materials showed the untruthfulness of her statement. She was, he argues, clearly an incredible witness. Police should have recognized this and never sought a statement from her. Obtaining that statement, he says, “borders on counselling perjury.”
36By Crown counsel calling C.M. to testify when they presumably had the same information the police did, the Defendant says they committed “a serious violation of their ethical obligations to ensure a fair trial.”
37It is worthwhile to review the roles of participants in the justice system. Each entity has its own job to do and should as much as possible, stay in its own lane. Failing to do so will blur the lines between them and risk the appearance of unfairness and partiality.
38Police are tasked with investigating allegations of crime. To do that, they often obtain statements from involved persons. They necessarily take a broad view and attempt to collect as much evidence as they can. Once that process is complete (or is close enough to complete that they can make a determination), they move on to the next step.
39That step is determining if reasonable grounds exist to lay one or more charges. That is the test they are mandated to apply. An officer does not need to be convinced of a suspect’s guilt on a balance of probabilities or beyond a reasonable doubt. There only needs to be reasonable grounds to believe an offence has been committed. If that threshold is met, a charge can be laid. The matter is then sent to the Crown Attorney.
40The Crown Attorney receives the police investigation and reviews it. In doing so, they answer two questions:
(1) Based on the evidence provided, is there a reasonable prospect of conviction?
(2) Is it in the public interest to proceed with a prosecution?
41The second question does not come into play in this application.
42In answering the first question, the Crown does not ask itself if it is satisfied beyond a reasonable doubt of the guilt of the accused. The Crown Prosecution Manual created by the Ministry of the Attorney General says this about the test in Section D.3, titled “Charge Screening”:
When considering whether to continue the prosecution of a charge, the Prosecutor should determine if there is a reasonable prospect of conviction. This standard must be applied to all cases and at all stages. If at any stage of the proceeding, the Prosecutor determines there is no longer a reasonable prospect of conviction, the prosecution must be discontinued.
The reasonable prospect of conviction standard is higher than a prima facie case that merely requires that there is evidence whereby a jury, properly instructed, could convict. On the other hand, the standard does not require "a probability of conviction," that is, a conclusion that a conviction is more likely than not. The term reasonable prospect of conviction denotes a middle ground between these two standards. It requires the exercise of prosecutorial judgment and discretion based on objective indicators found in the case itself.
Applying the reasonable prospect of conviction standard requires a limited assessment of credibility based on objective factors, an assessment of the admissibility of evidence and a consideration of likely defences.
In applying the standard, Prosecutors should consider the following factors:
the availability of evidence
the admissibility of evidence implicating the accused
an assessment of the credibility and competence of witnesses, without taking on the role of the trier of fact
the availability of any evidence supporting any defences that should be known or that have come to the attention of the Prosecutor.
(Emphasis added)
43At no point in the screening process does the Crown take on the role of trier of fact. While the Crown is required to engage in a limited assessment of credibility, it is not the Crown’s function to make definitive credibility findings. If the evidence obtained is capable of supporting a reasonable prospect of conviction, the Crown ought not to go any further. A strong reason for this limit is that the evidence, prior to trial, will be largely untested. Discrepancies or weaknesses that may seem troubling at first may be resolved in the crucible of a trial. Conversely, the evidence may be further weakened to the point that a reasonable prospect of conviction no longer exists. It is not the least bit unusual to have conflicting accounts of an incident. Candidly, that is why trial courts exist.
44Absent evidence that the police or Crown are knowingly offering evidence they believe to be false, there is nothing abusive in taking statements from or calling as witnesses those persons whose evidence has been contradicted elsewhere.
45It will be up to the trier of fact to determine how any piece of evidence should be factored into the eventual verdict in a case. It is that trier, after hearing all the evidence and seeing it tested through cross-examination, who is in the best position to make conclusive findings.
46Considering the actions of the police and the Crown separately and cumulatively, I find no basis for the allegation of abuse of process under this heading.
Crown counsel Brown misstating evidence
47The final heading relates to the conduct of Crown counsel Ms. Brown. The Defendant points to two areas of particular concern.
48The first is Ms. Brown’s submissions in the similar fact application. During those submissions, Ms. Brown referred to the mischief charge and said the Defendant had killed a complainant’s tree. This charge was not part of the similar fact application, and in fact had been the subject of an unsuccessful severance application prior to trial.
49The Defendant is correct that Ms. Brown did refer to the tree in the context of the similar fact application. She did so in her reply submissions, after Ms. Santarossa had made her argument. The submission was on the issue of whether the Defendant had acted angrily towards the complainants. When Ms. Brown made the comment she did, I confirmed with her that the Crown was not relying on damage to the tree in support of the application. Ms. Brown confirmed she was not.
50At no point in the similar fact ruling was the tree ever mentioned. The mischief charge was similarly omitted from consideration. There was no practical impact to Ms. Brown bringing it up in submissions.
51It is unfortunate that she referred to the Defendant having “killed” the tree. There was no such evidence. The comment was inaccurate hyperbole. It had, however, no impact on the proceedings. I understood the nature of the evidence related to the mischief charge and decided that count accordingly. The use of the word “killed” had no bearing on the trial of the mischief count. It certainly does not support a claim of abuse of process.
52The second area of concern regarding Ms. Brown is her cross-examination of the Defendant against the backdrop of the Crown’s successful similar fact application. The granting of that application was “perceived as a forecast to a guilty verdict”, according to the Defendant. He argues that the Court’s failure to correct Ms. Brown on her submission, together with the similar fact ruling, led to him conclude “a fair trial was not remotely possible.” As a consequence, he felt under attack throughout his cross-examination.
53In his materials, the Defendant refers to several examples from his testimony where his evidence was impacted by this feeling of being attacked. These areas correlate to areas that were of importance in my credibility assessment. He goes into significant detail to explain why he testified as he did, and to attempt to show that there was an understandable reason for him to have done so.
54I have no difficulty accepting that the trial was a difficult experience for the Defendant. He is facing a large number of serious charges and has maintained his innocence throughout. In addition to the trial, he has had to endure personal tragedy. I acknowledge this process has been hard for him.
55His filing of the documents in Exhibit 1 are further support for the psychological and emotional fragility he has experienced.
56As sympathetic as the Court is to the Defendant’s situation, it is not relevant to this application. In determining if there has been an abuse of process I must review the conduct of the state. Has state action created an unfairness that will be perpetuated if the trial continues? To answer that question I must look at what state actors have done. I do not consider new explanations for evidence and do not re-weigh that evidence in the light of those explanations.
57One argument that could have an impact on this part of my ruling would be an allegation that the Crown knew about the Defendant’s emotional fragility and exploited it. This argument has not been made and there is no evidence to support it.
58The cross-examination of the Defendant was vigorous. It was detailed. There were times when defence counsel objected. I see nothing in the substance of the questioning, however, that would lead me to conclude it was abusive.
59I am reminded of the decision of Justice Juriansz (as he then was) in the case of Danforth-Woodbine Theatre Ltd. v. Loblaws Inc. [2000] O.J. No. 4385 (S.C.J.). At paragraph 10, His Honour stated:
It must be recognized that counsel have the duty to be fearless advocates of their clients' interests. Litigation is not a garden party. The trial process is not designed to avoid hurting feelings and bruising sensibilities, but to pursue the elusive and perhaps concealed truth. There is a great range in the styles, techniques, and demeanours used by counsel in carrying out their role as advocates. I do not see it as the role of the court, using costs consequences as a sanction, to impose a particular style of advocacy upon counsel to use in challenging the opposing party's evidence and argument. The limit is reached when counsel's advocacy is properly characterized as reprehensible, scandalous, or outrageous.
60I say this recognizing that Crown counsel owe an additional duty to the justice system. There is an added burden on the Crown to act as a minister of justice and not seek conviction at all costs. There is nothing in the law, however, that forbids Crown counsel from being a zealous advocate and engaging in a challenging cross-examination of a witness. I am mindful of Justice Rand’s iconic decision in Boucher v. The Queen, [1955] S.C.R. 16 at pages 23 and 24:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
(Emphasis added)
61As Justice Rand stated, evidence should be presented “firmly and pressed to its legitimate strength”. Prosecutors are also expected to be “strong and effective advocates” (see: Crown prosecution manual Preamble) with fairness to all parties as a guiding principle.
62At no point did the conduct of Ms. Brown cross the line from strong advocacy into impermissible aggression. As I have said, her misstatement as to the tree was unfortunate but in my view it had no impact on the proceedings. There is nothing else in her conduct that would in any way support a finding of abuse of process.
63To be clear, there may be cases where the subjective perception of the Crown’s conduct by the Defendant is relevant to a claim of abuse of process. In the present case, the Defendant’s emotional reaction to the trial was known to him and to his counsel. It led, in fact, to a lengthy adjournment following the release of the similar fact ruling. The Defendant now asks me to revisit my credibility findings with that turmoil in mind, and asks me to find the Crown’s conduct was abusive. Unless the conduct of the Crown is so egregious that the integrity and substance of his evidence is called into question, this argument cannot support a finding of abuse. The Crown’s conduct does not in any way rise to this level.
64I have made my credibility assessments in this case. I decline to revisit any of them based on information that was known to the Defendant throughout the trial.
65There is no support for a finding of abuse of process under this heading.
Other Issues
66The Defendant has raised other issues in his materials that do not fit neatly in the four headings considered above. I will address those now.
67First, he takes issue with the timing of the similar fact application. At page 22 of his materials, the Defendant refers to “the Similar Fact Decision that the defendant believes never should have happened at that stage in this trial.”
68Hearing a similar fact application at the conclusion of the Crown’s case is not an arbitrary decision. The application is heard at that point for the benefit of the defendant. Before a defendant is asked if he or she wishes to call evidence or testify, it is incumbent on the justice system to ensure he or she knows the case they have to meet. This includes knowing how evidence called by the Crown will be used. If a similar fact application is not brought at the close of the Crown’s case, a defendant will make the potentially crucial decision to call evidence or not based on incomplete information. This would be unfair. Deciding the application when I did inured to the Defendant’s benefit.
69Second, he seems to argue a reasonable apprehension of bias on the part of the Court. By not, in his words, “reprimanding” Ms. Brown for her comment regarding the tree, and by ruling as I did on the similar fact application, the Defendant says a fair trial was “not remotely possible.”
70The test for a reasonable apprehension of bias is demanding. The threshold that must be crossed to displace the presumption of impartiality is high (see: R. v. R.D.S., [1997] 3 S.C.R. 484, at par. 113). In the present case, the Defendant has shown no evidence that a reasonable observer would apprehend bias on the part of the Court.
71Finally, the Defendant has suggested that if witnesses were called, they might shed light on abuses. This is the alternative remedy I mentioned above. There is no evidentiary basis that would support calling these witnesses to testify. The relevance of their evidence is based entirely on conjecture and speculation. It would be contrary to the interests of justice to allow the Defendant to essentially re-open the trial and look for evidence that might perhaps be of assistance to him. Like the test for a reasonable apprehension of bias, the test for re-opening a trial after conviction is demanding. Re-opening must be clearly called for and one factor to be considered is whether the further evidence is sought to be called to revisit a tactical decision made at trial. In R. v. Kowall, [1996] O.J. No. 2715, the Court of Appeal for Ontario made the following observation at paragraphs 31 and 32:
The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 86 C.C.C. (3d) 193. However, once the trial judge has convicted the accused a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. It seems to have been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for the admissibility of fresh evidence on appeal laid down in Palmer and Palmer v. The Queen (1979), 50 C.C.C. (2d) 193, at page 205 (S.C.C.) (see: R. v. Mysko (1980), 2 Sask. R. 342 (C.A.).) That test is as follows:
(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases...;
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief;
(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions.
72In the present case, all of the areas of concern led by the Defendant were known to him and his counsel at the time of trial. For reasons known only to them, they were not pursued, neither in the examination of witnesses nor in argument. I find the proposed new evidence (from calling the police and Crown counsel) fails to meet all four of the criteria set out above, and further that it is an attempt to revisit a tactical decision made in the course of the trial. There are no grounds to permit further evidence.
Result
73I have considered all the arguments raised by the Defendant. The grounds proposed, taken separately or together, do not support a finding of an abuse of process. He has failed to establish that state conduct has rendered the continuation of this trial unfair.
74The application will be dismissed.
Released: 9 April 2026
Signed: Justice S. G. Pratt