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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 —
S.L.
Before Justice J.R. Lalande
Heard on January 29 2026
Reasons for Decision released on January 30, 2026
Kate Wood counsel for the Crown
Neha Chugh and Audrey Dupras counsel for the accused S.L.
Lalande J:
Introduction
Overview
1This is my ruling on an application for a mistrial arising from disclosure that was withheld from the defence until months after the accused had been found guilty following trial. The parties agree that the trial must be re‑opened but diverge sharply on the appropriate remedy. The Crown proposes recalling witnesses for further cross‑examination and requiring the accused to make a fresh election based on the expanded evidentiary record. S.L. seeks a mistrial.
2For the reasons that follow a mistrial is ordered.
Procedural History
3In July 2025, the accused stood trial on ten offences involving his stepdaughter, O.L. Six counts alleged various forms of sexual abuse, including exposing genitals, invitation to sexual touching, sexual interference, sexual assault, and two child‑pornography‑related offences. The remaining counts alleged violence and threats. The Crown called two witnesses at trial: the complainant, O.L., and her mother, C.A. The accused did not call evidence. He was found guilty all of 10 offences. After the verdict, the matter was adjourned administratively for the preparation of a report under s. 21 of the Mental Health Act.
4Before the scheduled sentencing date, defence counsel received a previously undisclosed statement from O.L. The statement had been recorded more than a year before the July 2025 trial. The investigating officer, DC Norman, chose not to disclose it, despite the charges already having been laid.
5The Crown became aware of the statement in mid‑December 2025 and acted promptly to disclose it. The parties corresponded extensively over the following weeks regarding the litigation it might trigger, and the matter ultimately returned before me on this application.
The New Statement
6The impugned statement covers a wide range of topics. It was taken several months after the initial complaints and after charges were laid. While a portion overlaps with an earlier statement alleging abuse by the accused, the new account is substantially expanded; other incidents—some unrelated to the accused—appear for the first time. O.L. alleges that a janitor threatened her with a hammer as well as further sexual and physical abuse by S.L. The Crown submits that much of the statement would be inadmissible as collateral.
7At least two portions of the statement have potential to affect the findings of guilt. First, O.L. admits to having made a false allegation against the accused. She explains that she lied to her mother to provoke conflict that would result in S.L. leaving the home. She describes this as her “first” or, at another point, her “only” lie about the accused.
8Second, the statement discloses “other sexual activity” within the meaning of s. 276 of the Criminal Code. Defence indicates it would have sought to admit this evidence to challenge credibility. The account involves alleged sexual abuse by a family member and a suggestion the accused may have been aware of it.
9No charges were laid with respect to the allegations made in the new statement. According to the investigator, “no new grounds were developed as not enough information was able to be corroborated”. The failure to disclose the interview to the parties is explained in the investigator’s supplementary report, which says that “the allegations were different than the charges before the court and no further investigation would be completed at that time”. Though they summarize the interview and explain the investigator’s conclusions, neither of the investigative reports filed mention the lie told by O.L.
Legal Principles
10A mistrial is a discretionary remedy, granted only as a last resort where no other remedy can cure the prejudice (R v Anderson, 2018 ONCA 1002 at para 15; R v Toutissani, 2007 ONCA 773 at para 9; R v Griffith, 2013 ONCA 510 at para 39).
11Guidance on remedies following late disclosure in the post‑verdict context is found in Arabia, 2008 ONCA 565, a case quoted extensively in the authorities submitted by defence. In Arabia, the accused had sought to re-open the trial after its conclusion to call further evidence. As set out by Watt J.A., where a trial is re‑opened, a mistrial may be required where previously undisclosed evidence emerges, and the same rigorous standard applies whether the application arises mid‑trial or after judgment.
Positions of the Parties
12Both parties agree that this is an exceptional case warranting re‑opening of the trial. The new evidence is cogent, potentially undermines the verdicts, and was improperly withheld. Their disagreement concerns the appropriate remedy.
13Defence submits that the information shared in the late disclosure goes to the heart of the case. That is, whether the young complainant’s evidence established the offences beyond a reasonable doubt. To explain, at the conclusion of the trial, defence counsel effectively conceded that O.L. was credible and focused her arguments on reliability. As Ms. Dupras stated at the outset of her submissions:
… I'm not disputing necessarily her credibility in the in the regular sense. What's really in dispute here is the reliability of her testimony. And I would warn You Honor in my submissions to not conflate reliability and credibility, there are two different concepts. And here in this case, specifically, what's important is the reliability. [O.L.] wanted to tell the truth. It was evident she understood the questions as relates to what was the truth. But she's also demonstrated that her memory is not the best …. (Emphasis added)
14Defence argues that, had the new statement been available at the time of trial, things would have unfolded differently. Credibility would have been the central issue, and the accused may have testified. As a result, it is argued that the failure to disclose the statement in a timely manner has irreparably compromised trial fairness such that only a mistrial can cure the damage.
15The Crown proposes re‑opening the trial, recalling required witnesses, and then putting the accused to a fresh election. Since both the complainant and her mother testified previously, each could be recalled and examined on the new statement, with the defence free to call further evidence.
Discussion
16I base my decision to grant the mistrial on two reasons which are explained below. The first relates to the reconsideration of credibility findings. By and large, it is determinative of the outcome of this application. The second involves some further considerations as to trial fairness.
i. Reconsideration of Credibility Findings
17Although defence did not seriously dispute credibility at trial, I nonetheless made positive credibility findings, portions of which were read by defence in submissions on this application. The newly disclosed statement has potential to significantly undercut those findings.
18Defence relies on Drysdale, 2011 ONSC 5451, Aguilar-Lopez, 2025 ONSC 6074 and Maharaj, 2025 ONSC 6371 in support of her submission that a natural apprehension of bias can arise when revisiting credibility findings in this type of situation. In Drysdale, Justice Trotter had made adverse findings of credibility with respect to the accused. The findings were based on a portion of his testimony about his clothing. His clothing related to the issue of identification. Evidence later emerged at sentencing which supported the accused’s testimony on the issue of his clothing and impacted the credibility assessment. The case was re-opened and a mistrial was declared.
19In Aguilar-Lopez, Justice Penman was confronted with a similar situation in which Her Honour made positive credibility findings with respect to the complainant and negative findings in respect of the accused in a sexual assault case. At issue was the complainant’s consent or capacity to consent. After trial, a video surfaced showing the intercourse to have been consensual. This significantly impacted the initial credibility assessments. The trial was re-opened and a mistrial was ordered.
20In Maharaj, the Court declared a mistrial towards the end of the defence case as new information surfaced from a phone extraction suggesting that the complainant’s credibility could be in issue on several issues, including facts central to the litigation such as her stated age at the time of the offence.
21The reasoning behind these decisions was explained by Justice Trotter in Drysdale at paragraph 29:
If I were to continue the trial and permit further evidence to be called, short of finding Mr. Drysdale not guilty on all counts (a result I am not sure is warranted either), he, along with reasonably informed members of the public, would always wonder whether my “new” conclusions and reasons were infected by my prior adverse finding of credibility. Whatever result I reached would always be open to question. The only way to address this issue in a manner that is fair to both sides is to start all over again.
22I share this concern. If I proceed in the manner proposed by the Crown, any future verdict would always be open to question by the accused or any reasonable informed member of the public given my previous findings.
23The Crown seeks to distinguish Drysdale, Aguilar-Lopez and Maharaj based on the nature of the new information at issue. It argues that, in those cases, the new information was directly related to factual issues which were determined leading to the credibility findings at first instance. Here, the evidence potentially impacting the credibility of the complainant is discrete in nature and extraneous to the evidence previously tendered. This argument gave me some pause but, ultimately, does not persuade me that a lesser remedy is appropriate. Whether the new evidence was discrete in nature or related to previously adjudicated facts, the distinction is one without a difference when considered in terms of its impact. That is, my determinations in the verdict as to the complainant being ‘extremely believable’ as to her credibility may be contradicted by previously unknown evidence. Any reconsideration of that finding, even based on discrete incidents extraneous to the previous evidence, remains vulnerable to the concerns which I have articulated.
24I am supported in this conclusion by the preponderance of authorities involving extraneous matters related to credibility which surfaced after trial and resulted in a mistrial: R v S (XX), 2005 CarswellOnt 8259 (SCJ); R v Duro, 2018 ONSC 285 at para 26 and R v Carter-Texeira, 2019 ONCJ 838 at paras 39-40. The issues in this case also seem distinct from the available jurisprudence where Courts have allowed trials to re-open but declined a mistrial. In R v Curreri, [2017] OJ No 3457 (SCJ) the accused wished to change his election and testify despite having previously declined to call evidence. No new information had surfaced in that case. In R v Talaga, 2020 ONSC 3711, a refusal to grant a mistrial after a trial was re-opened was upheld by a Summary Conviction Appeal Court in a similar situation to that in Curreri.
25Given these insurmountable difficulties with the only other lesser remedy available, in my view a mistrial is the only appropriate outcome.
ii. Integrity and Fairness of the Trial
26While I view the first reason as dispositive of the outcome, I have also considered the practical impact of the lesser remedy of continuing the trial on the fairness of the process in coming to my conclusion.
27To explain, the solution proposed by the Crown amounts, practically speaking, to essentially to the same procedure as a retrial. The evidence of the two Crown witnesses would be in addition to their prior evidence. Further testimony would focus on issues related to the new disclosure subject to whatever overlap is necessary with earlier evidence. The accused would be permitted to testify at large or to call other evidence. Both sides would then argue as to the outcome with the Crown undoubtedly advocating that the findings of guilt be reinstated and defence asking that they be abandoned in favour of an acquittal.
28In my view, grafting the new testimony on to the existing body of evidence would compromise the fairness and integrity of trial process. First, the delay that accrues between the evidence called at trial and the recalling of further evidence upon re-opening is a significant consideration (Griffith, 2013 ONCA 510 at para 26). Here, the evidence of the witnesses was received in July of 2025. It is now late January 2026. More delay will certainly accumulate until any further evidence is heard. The witnesses, including potentially the accused, would be forced to return to the case after an extended period and in the process to address the prior testimony. This would undoubtedly be complicated by the passage of time.
29The same difficulty applies to the Court. As a trial judge in a busy jurisdiction, it would be admittedly difficult to retain impressions of witnesses over a prolonged period well in excess of six months. To borrow the more eloquent words of Justice McDonnell from a like scenario in R v Ghanbarbidkorpe, [2016] OJ No 6991(SCJ) at paragraph 10:
… a recollection of the manner in which Mr. Golizadeh testified at trial would be extremely important to [my] assessment. I am in the position where much of my impression of him exists now only in my notes, and in the black and white of my judgment, not in my memory. I don't believe that I could adequately reassess at this point whether I would still be satisfied beyond a reasonable doubt of Mr. Ghanbarbidkorpe's guilt, armed with the new facts.
30To some extent, this type of delay may also be a factor that contributes to an apprehension of bias when considering credibility findings. Depending on the outcome, a reasonable member of the public may question whether evidence heard months earlier was given less weight or whether too much time had passed to properly assess earlier evidence with the same scrutiny as more recently received evidence.
31Finally, although the impact may be more peripheral, there is a certain procedural difficulty that arise with the Crown’s proposal. Defence have indicated an intention to potentially advance a section 276 application targeting a sexual assault allegation made in the undisclosed statement. While, on occasion, these applications are brought mid-trial, the Supreme Court and Court of Appeal have signaled in very strong terms that, absent compelling circumstances, they should be dealt with prior to a trial to avoid complications, including unfairness or prejudice to the parties (JJ, 2022 SCC 28 at para 86, Ranu, 2025 ONCA 663 at para 13).
32To be sure, compelling circumstances exist in this case due to the late disclosure. However, hearing the application post-trial and prior to recalling witnesses has the effect of causing further mid-trial delay before the trial could continue and potentially engages some of the unfairness or prejudice-related concerns articulated in J.J.
33Finally, I am keenly aware that an important distinction as between the Crown’s proposal and the option of a mistrial is that the former spares a child complainant from having to recount the sexual abuse allegations in full a second time in testimony. I recognize this as an unfortunate consequence of the mistrial. At this stage, the difficult reality is that both options unfairly impose further demands on a young complainant who is not responsible for this regrettable situation. If the remedy sought by the Crown were granted, O.L. may have standing in a forthcoming s.276 application and be subject to further testimony. As a result of the mistrial, she may have to testify in a new trial and potentially participate in the application. Neither option seems ideal and, although I am sympathetic to O.L.’s circumstances, I have granted the mistrial as it is the fairest remedy overall – though I recognize that it is also an imperfect one.
Disposition
34The application to reopen the trial is granted on consent and a mistrial is ordered for the reasons explained.
35A copy of these reasons will be filed with the Court’s file and the Application Record is to be marked as Exhibit 1 on the voir-dire with Tabs “I” and “O” sealed from public access unless subject to prior judicial approval.
Released: January 30 2026
Signed: Justice J.R. Lalande