CITATION: R. v. Albert, 2026 ONCJ 456
DATE: June 24, 2026
Information No. 4011-998-19-00001256-00
ONTARIO COURT OF JUSTICE
HIS MAJESTY THE KING
v.
MICHEL ALBERT
DANGEROUS OFFENDER APPLICATION
RULING ON APPLICATION#2
FRESH EVIDENCE/MISTRIAL
BEFORE THE HONOURABLE JUSTICE L. KIM
on June 24, 2026, at SUDBURY, Ontario
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(2.1) and 486.4(2.2) of the Criminal Code.
APPEARANCES:
K. Abbott and K. Whillans
Counsel for the Crown
Michel Albert
In Person
A. Dygos on behalf of W. Stickland
Agent for Amicus Counsel
WEDNESDAY, JUNE 24, 2026:
U P O N R E S U M I N G
Mr. Albert has brought an application for leave to introduce fresh evidence and is asking this court to declare a mistrial. He argues that his convictions on the Information before me are unsafe and unfair because of nondisclosure of key evidence, improper use of an Agreed Statement of Facts, ineffective assistance of counsel, and essentially a misapprehension of the evidence.
Fresh evidence is assessed under the Palmer test as explained in Palmer v. The Queen in 1979 CanLII 8 (SCC), [1980], 1 S.C.R. 759. The evidence must be adduced with due diligence, or be reasonably unavailable at trial, be relevant, be credible, and be such that it could reasonably be expected to affect the result.
Where nondisclosure is alleged, the analysis overlaps with Charter and Stinchcombe principles. The accused must show a reasonable possibility that the outcome could have been different, or trial fairness was affected.
The purported fresh evidence Mr. Albert relies on includes correspondence showing the Agreed Statement of Fact was never agreed to and that voluntariness was a live issue. Additionally, he seeks to introduce the fact that there was missing disclosure such as surveillance videos, notes, and interviews of certain witnesses, as well as the fact that there were newly obtained notes from police officers Dockery and Maksymchuk. He also wishes to show evidence with respect to discrepancies between transcripts and actual videos, as well as materials supporting his defence with respect to his physical limitations.
Mr. Albert submits that this evidence was not available at trial and the absence of it undermined the fairness of the trial. Essentially, he submits the trial before Justice Buttazzoni was procedurally unfair because critical evidence was withheld, his lawyers failed him, and the case was decided using an Agreed Statement of Facts that was never validly agreed to. As a result, he was deprived of a meaningful opportunity to defend himself and a mistrial is required.
Palmer Analysis
(i)Due Diligence
The first prong of the Palmer criteria requires me to assess whether the evidence through due diligence could have been introduced at trial. Mr. Albert claims evidence was not disclosed or not accessible due to custody limitations and missing USBs, among other factors. However, it is unclear to me whether the Crown failed to disclose certain items or if Mr. Albert's previous lawyers failed to pass that disclosure on to him. Furthermore, there is an absence of a reliable evidentiary record establishing specifically what was disclosed and when those items were disclosed. These are important factual distinctions that are core essentials to this inquiry.
Mr. Albert was represented by three lawyers previously in these proceedings up until he discharged Mr. Denis Michel on February 18, 2026. It is entirely plausible that his lawyers were in fact provided all relevant disclosure by the Crown but for logistical or practical reasons every item of disclosure was not provided directly to Mr. Albert. However, I cannot rule out that he was not made aware of the significance and contents of such evidence through his previous three lawyers.
It is reasonably expected for counsel to decide tactical issues related to trial strategy and to introduce certain evidence at trial after meeting with clients, explaining to them the relevance and evidentiary value of certain evidence and seeking their instructions on how to proceed.
When relevant disclosure has not been disclosed to defence counsel, one avenue that exists is to bring a disclosure application before the trial judge. This is just one example that existed at the time Mr. Albert was represented by counsel. If and why such a remedy was not pursued before the trial judge is not something I can ascertain on the incomplete record before me.
Whether disclosure issues were discussed as between Mr. Albert and his respective lawyers, is an important component to the analysis. While not on its own determinative, I cannot rule out the reasonable possibility that his lawyers were either aware of the disclosure that Mr. Albert sought and chose not to pursue it or were in possession of it but did not share it with him directly.
It also appears that Mr. Albert himself is unsure of the underlying foundational facts that are a key distinction to his claim. For example, on May 28, 2026, page 82 of the transcript reveals:
MICHEL ALBERT: I'm not trying to, basically, reverse a tactical decision. Evidence was not provided, and disclosure was – was withheld.
THE COURT: By whom?
MICHEL ALBERT: I have no clue, Your Honour.
If the impugned disclosure was in fact provided by the Crown to Mr. Albert's previous lawyers when he was represented by them, then the Crown would have fulfilled their disclosure obligations.
Whether this evidence was shared directly with Mr. Albert or explained to him in such a way to permit him to make informed decisions, is the subject of privilege and is not before me. I have no way of determining with any degree of certainty if the Crown has disclosed everything relevant from Mr. Albert's perspective without hearing from his prior counsel or representatives from their respective law offices. This has all the hallmarks of what appears to be a complaint of ineffective assistance of counsel, something that I am not situated to address on the incomplete record before me.
For example, I am being asked to speculate that the copies of screenshots filed as exhibit 1D in combination with each of the other exhibits filed by Mr. Albert in this application, permit me to find that disclosure was not provided to him by his previous counsel or the Crown, or that the Crown did not provide relevant disclosure to his lawyers. He has relied to some degree, by comparison, disclosure he has received from the Court of Appeal file in July 2025.
With the greatest of respect to Mr. Albert, I do not have sufficient evidence to find that what he has presented to me in each of his exhibits filed in this application amounts to missing disclosure.
I have screenshots of databases of numerous PDF files and video files. But without ascertaining what each file actually contained, all I can make out is a general number of files configured in such a way that suited that particular lawyer who prepared and organized those databases.
Similarly, exhibits 1L, which included Constable Dockery and Sergeant Maksymchuk, as well as 1M, those officers' notes, are peripheral at best. These notes do not contain any cogent evidence connected to the predicate offence or any of the other four Informations. Those notes seem to consist primarily of investigative follow up on a previous suicide attempt in custody by Mr. Albert after the commission of the predicate offence in April 2019, as well as information passed on to the relevant investigators in the other matters.
I am told by Crown counsel that the complete file from the CFS or Centre of Forensic Sciences, including the biologist’s notes pertaining to the forensic biologist's DNA analysis, were not disclosed. Nor were the two preliminary reports that ascertained the presence of DNA and the victim's fingernails and the results of the DNA warrant executed upon Mr. Albert. What was disclosed to Mr. Albert's trial counsel was the final CFS report that provided an evidentiary link to the DNA and the victim's fingernails to Mr. Albert. This final report was filed as an exhibit at trial and assisted the trial judge in determining the identity of Mr. Albert as the offender through DNA evidence in conjunction with the other evidence presented at trial.
Additional evidence of identity appears to have been sourced from Mr. Albert's own statement to police and the testimony of bystanders who were at the scene of the offences.
Any concerns related to the reliability of the DNA evidence linking Mr. Albert as a perpetrator are alleviated when I consider the totality of the evidence Justice Buttazzoni considered in determining the identity of Mr. Albert. That evidence speaks for itself and I will not repeat them here.
Suffice it to say, Justice Buttazzoni’s Reasons for Judgement were clear, considered and thorough on my reading of it. His analysis and each element of the offences is easy to ascertain and where he had a reasonable doubt, he acquitted.
I fail to see how any of the potentially new disclosure identified by Mr. Albert when taken together with all of the evidence adduced at trial could have affected the result.
Because I am unable to find as a fact that there was in fact relevant evidence that has any degree of cogency that was not provided to Mr. Albert's lawyers prior to February 18th of 2026, the application to introduce fresh evidence must fail. The application is dismissed.
I will now move to the mistrial application. This is still part of the broader application number two that Mr. Albert has brought on the dangerous offender hearing. In addition to the lack of disclosure, Mr. Albert vigorously challenges the admissibility of the Agreed Statement of Facts as decided by Justice Buttazzoni at trial. He seeks a mistrial before sentencing proceeds to a dangerous offender hearing. He argues that the Agreed Statement of Fact should never have been relied upon at trial. He claims he never agreed to it, he never signed it and that it was prepared for a guilty plea that never occurred. He also alleges that the Crown filed the Agreed Statement of Facts anyway and relied on it instead of calling evidence.
His legal position is that the Agreed Statement of Facts requires actual agreement and without his consent, it was “fraudulently deposed.” Its use relieved the Crown of proving its case and shifted the burden onto him. He says this alone justifies a mistrial.
Some key considerations are that the admissibility and the use of the Agreed Statement of Facts was fully litigated at trial. The trial judge ruled on its admissibility and its functional purpose. Mr. Albert repeatedly challenged Justice Buttazzoni's decision to rule the Agreed Statement of Facts admissible.
In many respects, this does appear to be an attempt by Mr. Albert to relitigate a trial ruling.
With the greatest of respect to Mr. Albert, the remedy for an alleged error is an appeal, not a re-litigation of the identical issues.
Ineffective Assistance of Counsel
Mr. Albert also has raised both implicitly and explicitly ineffective assistance of counsel against all three of his previous lawyers who have represented him prior to February 18th, 2026.
The allegations include that counsel failed to provide him with disclosure, inform him of key legal issues; for example, the Agreed Statement of Facts and voluntariness issues, and failed to follow his instructions; for example, he wanted a jury trial. Additionally, that counsel allowed the Agreed Statement of Facts to proceed improperly, that they failed to argue its issues adequately on his behalf and that they did not share communications with the Crown.
The net result is that Mr. Albert is saying that he was uninformed, unable to instruct counsel properly and unable to defend himself.
However, ineffective assistance of counsel is squarely an appellate issue. Additionally, the record is incomplete. There are no affidavits from counsel and previous counsel that represented Mr. Albert. This issue has already been raised at the Court of Appeal in related proceedings at least in the other matters that were before the Court of Appeal recently in May 2026.
Pursuant to section 669.2(2) of the Criminal Code, I am continuing this case, and it is my duty to impose the punishment or make the order that is authorized by law in the circumstances.
Clearly, I have the jurisdiction to continue the post conviction proceedings which includes the dangerous offender process.
The scope of my jurisdiction is generally limited to sentencing or post verdict jurisdiction, not trial adjudication, unless the conviction is so defective that proceeding to sentencing would cause a miscarriage of justice.
To this end, I am satisfied that the totality of the case law does not permit me to order a mistrial post verdict, even when I consider the wording of Section 669.2(2), authorizing me to make an order that is authorized by law and in the circumstances.
I am bound by R. v. Halcrow, 2008 ABCA 319 paragraph 24. As the Crown noted, leave to the Supreme Court of Canada was refused, [2009] SCCA 523. That case held that the weight of appellate authority suggests that a trial judge generally has no jurisdiction to hear a motion for a mistrial once the jury has been discharged.
There are two exceptions noted at paragraph 26 and 27 of that decision that have no application to this case before me.
Therefore, I conclude that post verdict, I do not have the power to order a mistrial.
Additionally, in a very thorough analysis of the case law, as explained by Justice G. P. Weatherill, and R. v. Hako, 2024 BCSC 857 at paragraph 43,
“...the weight of appellate authority is that a trial judge generally has no jurisdiction to hear a motion for a mistrial once a jury has been discharged.”
I am not persuaded that this legal principle is limited in its application to only judge and jury matters. The governing principle is one of functus officio and it applies equally to matters decided in judge alone trials, such as this.
However, if I am wrong, and the door is open for me to order a mistrial in rare or exceptional instances, I remind myself that I was not the trial judge and that judge would have been best positioned to understand the full circumstances of this case, and whether a risk of a miscarriage of justice existed.
I was not present for the evidence, submissions of counsel, and rulings made by Justice Buttazzoni. But I have read His Honour’s rulings at trial, particularly as it relates to his decision to admit the Agreed Statement of Facts and what utility it would have had and to what extent counsel for Mr. Albert could still adduce evidence despite its admission.
I have also carefully reviewed his Reasons for Judgement, and it is easy for me to determine how he made certain findings of fact in support of his findings of guilt and acquittals, and what facts would be relevant for proper adjudication of the dangerous offender hearing.
The convictions and acquittals entered by Justice Buttazzoni were properly entered on the evidence he cited in his Reasons. Ultimately, there is nothing in his Reasons that raises any concerns to permit me to conclude that this is one of those clearest of cases where a mistrial is needed to prevent a miscarriage of justice.
While Mr. Albert is at liberty to disagree with Justice Buttazzoni’ s rulings and Reasons for Judgement, the proper legal forum is for him to raise these issues at the Court of Appeal in due course.
From an evidentiary standpoint, until there is a determination of whether there is any missing disclosure and what exactly it is, I am unable to determine what impact, if any, it would have had on Mr. Albert's ability to make full answer and defence and the ultimate impact, if any, on the fairness of these proceedings against him.
The complete CFS file was not requested from the Crown with respect to the report from Ronald Lai (ph), is one example. Up until February 18th, 2026, Mr. Albert was represented by counsel. What impact, if any, the CFS file of the forensic biologist who authored the expert report, as it relates to his DNA found in the victim's fingernails, would be speculative at best.
I am not satisfied that this is one of those clearest of cases or that there is any evidence of a real danger of prejudice or miscarriage of justice that would justify a mistrial.
Accordingly, Mr. Albert's application for a mistrial is dismissed.
. . .WHEREAS THIS MATTER CONTINUED
FORM 3
ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Skye Hearty
(Name of authorized person)
certify that this document is a true and accurate transcript of the recording of
R. v. Michel Albert
in the
Ontario Court of Justice
(Name of case)
(Name of court)
held at
155 Elm Street, Sudbury
(Court address)
taken from Recording
4011_CrtRmC_20260624_085744_6_KIMCAR.dcr
, which has been certified in Form 1.
July 23, 2026
(Date)
(Electronic signature of authorized person)
6414893490
(Authorized court transcriptionist’s identification number –
if applicable)
Ontario
, Canada.
(Province of signing)
A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.