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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2022 03 24 COURT FILE No.: City of Stratford 3211-998-19-1269-00

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

R.G.

Before: Justice K.L. McKerlie

Heard on: February 8, 2022 Ruling on Application to Reopen/Mistrial released: March 24, 2022

Counsel: J. Costain ………………………………………………………….counsel for the Crown R. Posner and J. Mencel ………………………………counsel for the Applicant R.G.

McKerlie J.:

Background

[1] The Applicant, R.G., seeks an order reopening the trial and a declaration of a mistrial in circumstances where he has been found guilty and has not yet been sentenced.

[2] The trial was heard on March 30, March 31, April 1 and April 7, 2021. The crown’s case consisted of the testimony of the complainant, who was 18 years at the time of trial, the testimony of the complainant’s mother, and exhibits filed, including an Agreed Statement of Facts respecting the police investigation.

[3] R.G. did not testify and did not call evidence at trial.

[4] On July 6, 2021, R.G. was found guilty of 10 counts relating to the sexual abuse of his daughter. The offences span an eight-year period from October 2011 to October 2019. The complainant was 9 or 10 years old at the time of the first offence. The last offence was on October 3, 2019, a few days before the complainant’s 17 birthday.

[5] The following is a summary of the trial findings relative to the counts set out in the Information:

Count 1 (s. 151): On a number of occasions between October 12, 2011 and December 31, 2012, R.G. touched the complainant, a person under the age of 16 years, for a sexual purpose by groping her buttocks and breasts over her clothing. He also made sexually inappropriate comments about her body and her clothing.

Counts 3, 4 & 5 (ss. 272(2)(b), 279(2) and 155): On a date between October 12 and December 31, 2015, R.G. unlawfully confined the complainant in the basement bedroom of her grandparents’ home by forcibly restraining her and handcuffing her to the bed. After forcibly removing her clothing, R.G. masturbated and put a condom on his penis. R.G. spread the complainant’s labia and forcibly subjected her to sexual intercourse in circumstances where he knew the complainant was his daughter, thereby committing the offences of incest, sexual assault with a weapon and unlawful confinement.

Counts 6 & 7 (ss. 271 and 155): After her parents separated, the complainant attended weekend access visits with her father. On one occasion, between December 1st and December 31, 2017, R.G. entered the bedroom while the complainant was sleeping. The complainant awoke to find R.G. on top of her, masturbating and removing her pajamas. R.G. restrained the complainant with her hands over her head and told her to keep quiet. He took a condom from the drawer of the cabinet and forcibly subjected her to sexual intercourse, in circumstances where he knew she was his daughter, thereby committing the offences of sexual assault and incest.

Counts 8 & 9 (ss. 271 and 279(2)): On another occasion between October 12, 2017 and December 31, 2017, R.G. and the complainant were in the garage while the complainant’s brother was inside the house watching a movie. R.G. told the complainant to get in his truck. He sexually assaulted the complainant by forcibly kissing her and trying to suck her breasts. She told him to stop, and he told her to shut up. R.G. removed the complainant’s clothing. He told her to get into the storage area of the truck. R.G. unlawfully confined the complainant, who was then naked, in the storage area of the locked truck for hours before letting her out in the morning.

Count 10 (s. 272(2)(b)): On October 3, 2019, R.G. told the complainant to meet him in the Tim Hortons’ parking lot. R.G. entered the complainant’s vehicle and sexually assaulted her using a pocket knife as weapon. He kissed her, told her to shut up and sucked her breasts. The complainant struggled to keep her pants up but was unsuccessful. R.G. used a pocket knife and deliberately nicked the surgical incision at the hairline of her vagina.

Count 11 (s. 155): On October 3, 2019, after sexually assaulting the complainant in her vehicle, R.G. told the complainant to get out and get into his truck. He told her to lay down on the back seat, to shut up and to not move. He pulled down her pants and underwear. He then pulled his own pants down, masturbated and put a condom on his penis. R.G. forcibly subjected the complainant to sexual intercourse in circumstances where he knew she was his daughter, thereby committing the offence of incest.

[6] The sentencing hearing was scheduled for August 17, 2021.

[7] On August 15, 2021, R.G. packed his belongings, cut off his GPS ankle bracelet and left his surety’s residence. According to the Crown’s Notice of Application seeking revocation of the release order, R.G. was located and arrested approximately 4 hours later. R.G.’s release order was then revoked.

[8] By Notice of Application dated August 17, 2021, R.G. sought an adjournment of the August 17, 2021 sentencing hearing on the basis that he had retained new counsel. At the request of the defence, the sentencing hearing was subsequently adjourned on a number of occasions.

[9] By Notice of Application dated December 10, 2021, R.G. now seeks an order for the reopening of the trial and a declaration of a mistrial. The Application Record, Crown’s Response and Defence Reply have been marked as exhibits. The Application was heard on February 8, 2022.

Proposed Fresh Evidence on Application to Reopen and Declare a Mistrial

[10] The defence seeks to adduce the following as fresh evidence:

1. R.G.’s October 12, 2019 monthly invoice from Rogers which lists the monthly charges, usage summary and details of usage for three numbers: wireless 519-[…] under the name R.G.; wireless 519-[…] under the name of the complainant; and a third number, the details of which were redacted.
2. The November 12, 2021 Affidavit of Danielle Fortier, a Rogers employee, who examined R.G.’s October 12, 2019 monthly invoice, interpreted the various usage details, and explained the manner in which various cell site locations are listed in the usage details. Ms. Fortier confirmed that no connected calls were made between R.G.’s wireless number 519-[…] and the complainant’s wireless number 519-[…] on October 3, 2019. Ms. Fortier also stated that based on the invoice calling details for October 3, 2019, R.G.’s wireless phone connected to one or more cell sites in the local calling area of Toronto between the hours of 19:55 and 22:41. Ms. Fortier also provided a detailed interpretation of the usage or call details for R.G.’s wireless number on September 16, 2019.
3. The December 30, 2021 affidavit of R.G. in which he deposed inter alia, that:
   10. In or around March of 2019 I moved to [address redacted] in Caledon. During the months of September and October 2019, my cellphone was passcode protected and was continuously and exclusively in my possession and control. I used it as my sole means of communicating with others, including K.G. and my two children. I did not have a land line at my residence in Caledon. I would not have left my residence in Caledon, Ontario without my cell phone.
   11. I was not in [x-Town] on the night of October 3, 2019. I did not sexually assault my daughter on that date or any other date.
4. The December 9, 2021 affidavit of R.G.’s trial counsel in which he deposed that he did not have R.G.’s phone records prior to or during the trial and if he had the benefit of those phone records and the information contained in the Fortier Affidavit, it would have changed his advice to R.G. on the necessity of testifying and it would have changed his approach to the trial. Trial counsel deposed, inter alia: 8a. The Fortier Affidavit is exculpatory evidence that R.G. was not in [x-Town] on October 3, 2019 as alleged by the complainant. This, in turn, would have affected my advice to R.G. on whether he ought to testify; I would have advised him that advancing an alibi would require that he testify. Apart from potentially providing a defence to Counts 10 and 11, the Fortier Affidavit would have also impacted the general credibility of the complainant across all counts. 8b. The Fortier Affidavit also provides a basis on which to demonstrate that the complainant was untruthful in her statement to the police that she was sexually assaulted in mid-September 2019, the uncharged incident. … As part of the police investigation, the police concluded, by process of elimination, that the Uncharged Incident took place on September 16, 2019 because the complainant’s mother accounted for all of the complainant’s recorded school absences in September 2019, except for that date. The Fortier Affidavit demonstrates that R.G. did not call the complainant’s school in [x-Town] on September 16, 2019, nor was his phone in that area. This would be relied upon to show that the complainant’s allegation is false. This along with the admitted falsehood about the “rape kit” would have changed my approach to the Uncharged Incident.
   9. Ultimately, it was R.G.’s decision whether he was going to testify or not. However, I did not tell R.G. in our discussions that I thought it was necessary to testify. If I had the phone records and Fortier Affidavit, I would have advised R.G. to testify. Moreover, I would have advised R.G. that if he was at all apprehensive about testifying that he could draw some confidence from the independent confirmation that the Fortier Affidavit provided.
   10. In conclusion, the Fortier Affidavit would have changed my approach to the trial. Significantly, as mentioned above, it would have influenced my advice to R.G. on whether he ought to testify both to support an alibi defence to the October 3, 2019 incident (Counts 10 & 11) but also to establish that the Uncharged Incident was fabricated. The defence strategy would have changed to rely upon the Fortier Affidavit to argue that the complainant fabricated both October 3, 2019 allegations and the Uncharged Incident, which, in turn, renders her evidence an insufficient basis for a conviction on any of the remaining counts.

[11] I have highlighted content from each of the three affidavits filed in support of the Notice of Application. In reaching my determination, I have considered the affidavits in their entirety, not only the portions summarized above.

Applicant’s Position

[12] As set out in the Application Record and the Applicant’s Reply, the grounds upon which R.G. seeks the declaration of a mistrial include the following. I emphasize that I have considered the Applicant’s written and oral submissions in their entirety, not only the points summarized below:

1. Neither the police nor trial counsel obtained R.G.’s cell phone records and/or the complainant’s cell phone records. Trial counsel deposed that if he had obtained the phone records, he would have conducted the defence in a substantially different manner.
2. Following the findings of guilt, R.G. retained new counsel who obtained the September and October 2019 phone records from Rogers, and also obtained an affidavit from Danielle Fortier, a Rogers employee who reviewed the records.
3. The Fortier affidavit, filed as fresh evidence on the Application, establishes that R.G.’s cell phone was not in [x-Town] on the night of October 3, 2019 and there were no connected calls between R.G.’s cell phone and the complainant’s cell phone on October 3, 2019.
4. Based on R.G.’s cell phone records for September 16, 2019, R.G. was not in [x-Town] on September 16 and there was no cell phone call to the complainant’s school on September 16. This “uncharged incident” was not the subject matter of charges or evidence at trial.
5. As outlined in defence counsel’s detailed oral submissions, information gleaned from the usage details in the Rogers invoice matches or dovetails with information provided by the complainant’s mother, K.G., respecting contact with R.G. on September 30, October 1 and October 4, 2019.
6. The defence submits that the Fortier affidavit is cogent and compelling evidence of R.G.’s innocence on the charges relating to the events of October 3, 2019. The defence further submits that the fresh evidence applies across the totality of the counts on the Information and taints the totality of the complainant’s testimony.
7. The defence acknowledges that the cell phone evidence could have been obtained through due diligence prior to trial, but submits that this factor should have limited weight in the admissibility calculus. The defence emphasizes that the Court did not have the benefit of reliable evidence on a crucial issue.
8. In conclusion, the defence submits that the verdicts of guilt are a miscarriage of justice and the only remedy is the declaration of a mistrial. As submitted at paragraphs 14-15 of the Reply: … Finality is an important objective in criminal proceedings, but it must not be slavishly pursued at the expense of justice. Turning a blind eye to fresh evidence, as advocated by the [Crown], would undermine confidence in the administration of justice and therefore, a mistrial should result. The [Crown] has submitted that, should this Court deem fit to admit the fresh evidence, the appropriate remedy would be to re-open the case. In reply the Applicant points to the judgment of Trotter J. (as he then was) in R. v. Drysdale, 2011 ONSC 5451. … In light of this Court’s determination of the credibility of the complainant, the reasoning in Drysdale supports the Applicant’s submission that a mistrial is the only remedy. The clearest of cases standard is met.

Crown’s Position

[13] As set out in the Response, the Crown submits that R.G. made a choice not to testify at trial and now, post conviction, seeks to advance an alibi in relation to the October 3, 2019 charges and in relation to an uncharged incident from September 2019, which was not the subject of trial testimony.

[14] The crown emphasizes that R.G. had some 16 months between his arrest on November 19, 2019 and the trial to develop, investigate and disclose the alibi, which the crown characterizes as a “weak alibi”.

[15] The Crown specifically submits:

1. This Application is an attempt to reverse a tactical decision made at trial. The proposed evidence could have been adduced had there been due diligence.
2. The proposed evidence, when taken with the other evidence adduced at trial, would not affect the result.
3. If a remedy is granted, the proper procedure would be a re-opening of the trial, not a mistrial.
4. Trial counsel’s competence is not in issue. R.G. was aware of the choices available to him. He chose not to testify.
5. The defence trial strategy was to thoroughly attack the complainant’s credibility. The defence chose to call no evidence. The defence is bound by that decision.

[16] The Crown further submits that in the language of the Saskatchewan Court of Appeal in R. v. E.J.B. at para. 7, R.G. is not entitled to a new trial “simply because he chose not to conduct a sufficient investigation, or not to present all evidence available, before and during the first trial”.

[17] In summary, the Crown submits that R.G. now chooses to put in his affidavit a simple denial of the charges laid against him. He could have done that properly at trial. He chose not to testify; he ought to be bound by that choice.

[18] The crown submits that in any event, the defence position for an immediate declaration of a mistrial is wholly unwarranted. This is not the clearest of cases. Unlike many scenarios, including Drysdale, no adverse finding of credibility was made in relation to R.G. The crown submits that as a general rule, permission to re-open would be followed by the setting aside of the prior finding(s) of guilt, reception of the further evidence, together with any evidence offered by the crown in reply, the submissions of counsel and a decision on the adequacy of the crown’s proof in light of the new evidence.

[19] The crown submits that this court is as best positioned as any trier of fact will ever be to properly apply all appropriate legal principles should the trial be re-opened.

[20] I am mindful that the crown on this Application was not the trial crown. Defence counsel properly corrected an error in the crown’s responding materials relating to the testimony of the complainant’s mother, K.G. Defence counsel is correct that K.G.’s testimony—that she observed R.G. pull into the parking lot of her building and block the complainant’s vehicle—is not confirmatory of events on October 3, 2019. As of the date of trial, K.G. believed that she made that observation on October 3. The timing of her recollection was not clarified or challenged at trial but, as outlined in the Applicant’s Reply, K.G. earlier told the police she made those observations on October 1. Nothing turned on K.G.’s recollection of that event. The complainant did not testify that R.G. blocked her vehicle on October 3 or that she saw R.G. earlier in the day on October 3. K.G.’s testimony was not relied upon to confirm or support the complainant’s testimony respecting events on October 3, 2019. Likewise, K.G.’s testimony is not a basis for contesting the Rogers cell phone records.

Governing Principles

[21] On an application for an order reopening the trial and/or declaring a mistrial made to a trial judge after findings of guilt and before sentencing, the following governing principles apply.

[22] As succinctly summarized by Watt J. in R. v. Kippax, 2011 ONCA 766 at paras. 62-64:

62 … [A] trial judge who has made a finding of guilt on disputed facts has the authority to vacate the adjudication of guilt at any time before the imposition of sentence or other final disposition: R. v Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.) at p. 73. This authority, to vacate an adjudication of guilt, should be exercised only in exceptional circumstances and in the clearest of cases: Lessard, at p. 73.

63 The test for re-opening the defence case when the application is made after a finding of guilt is more rigorous than that which governs a similar application prior to an adjudication of guilt: R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at p. 493. The Palmer criteria provide helpful guidance to a trial judge faced with an application to re-open after a finding of guilt has been recorded. But a trial judge must also consider whether the application to re-open is, in essence, an attempt to reverse a tactical decision made at trial: Kowall, at pp. 493-494. See also, R. v. Arabia, 2008 ONCA 565 at para. 46.

64 A trial judge’s decision about whether to permit re-opening of the defence case after an adjudication of guilt has been made involves an exercise of judicial discretion. …

[23] In R. v Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.), Martin J. A. emphasized at p. 73 that the power to vacate an adjudication of guilt before the imposition of sentence is “a power which, I cannot stress too strongly, should only be exercised in exceptional circumstances and where its exercise is clearly called for”.

[24] In R. v. Griffith, 2013 ONCA 510, Rosenberg J. A. observed that the Lessard test has stood the test of time and held:

23 …the phrase “exceptional circumstances” already captures the essential point that it will only be in very rare cases that a judge would reopen a conviction. Indeed, in Lessard, at para.12, this court said that the exercise of vacating an adjudication of guilt must be “clearly called for”. Such a principle will recognize the strong interest in finality, as well as other institutional concerns that are so deeply ingrained in our common law system.

[25] At para. 21, Rosenberg J. A. addressed the Lessard test in the context of an application based on fresh evidence:

21 … Where the application is based upon new evidence, the courts have adapted the Lessard test to reduce the likelihood that the procedure will undermine the normal appellate process in a way consistent with the enhanced interest in finality once a verdict has been delivered. Thus, the trial judge is required to apply the same test from R. v. Palmer [citation omitted] that an appellate court would apply when an appellant seeks to introduce fresh evidence on his appeal. The judge will also take into account whether the application is an attempt to reverse a tactical decision: see R. v. Kowall and R. v. Kippax [citations omitted].

[26] In R. v. Kowall (1996), 108 C.C.C. (3d) 481, at para. 32 and 40, the Ontario Court of Appeal made the following observations respecting tactical decisions made at trial:

32 … 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. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial.

40 A trial is not some kind of preliminary inquiry allowing the parties to recast their case depending upon the reasons for judgment. This was not a case where some minor fact unexpectedly took on overwhelming importance in the trial judge’s reasons.

[27] In R. v. M.G.T, 2017 ONCA 736, at paras. 46-52, Watt J. provided the following guidance on the Palmer criteria in the context of applications to re-open after an adjudication of guilt [citations omitted]:

47 The test for re-opening the defence case after findings of guilt have been made and convictions recorded is more rigorous than that which governs the same application made prior to an adjudication of guilt. This is so because a more exacting standard is required to protect the integrity of the criminal trial process, including the enhanced interest in finality: R. v. Kowall (1996), 108 C.C.C. (3d) 481, (Ont. C.A.), at para. 31.

48 The criteria to be met to determine the admissibility of fresh evidence on appeal provide helpful guidance to judges faced with an application to re-open the defence case after an adjudication of guilt has been made. The test is familiar: (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: see McMartin v. The Queen, [1964] S.C.R. 484. (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, and (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. See Palmer, at p. 775; Kowall, at para. 31.

49 The Palmer factors requiring consideration on applications to introduce fresh evidence on appeal, incorporated by reference on post-verdict applications to re-open, may be summarized as: i. admissibility; ii. cogency; and iii. due diligence. See Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.

50 The admissibility and cogency requirements drawn from Palmer ensure that evidence proposed for reception on a post-conviction application to re-open: i. relates to a decisive or potentially decisive issue at trial; ii. is reasonably capable of belief; iii. is probative of the fact the party seeks to establish by its introduction; and iv. is admissible under the prevailing rules of evidence. …

52 The cogency requirement commands a qualitative assessment of the evidence proffered on the application to re-open. This qualitative assessment begins with an identification of the purpose or purposes for which the evidence is proposed for admission. This involves an assessment of the potential (but not the actual) value of the evidence, considered in the context of the evidence adduced at trial that underpins the finding the party seeks to impeach: Truscott (2007), at para. 100. In this way, it can be determined whether the evidence is sufficiently cogent to warrant its admission. The trial judge should carefully evaluate the proposed evidence and the credibility of its source: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 50. However, no effort should be expended to determine the ultimate reliability of the evidence or the ultimate credibility of the witness whose evidence is tendered: Snyder, at paras. 50-51.

[28] In R. v. Allen, 2018 ONCA 498, at para. 108, Watt J.A. emphasized that the potential probative value of the proposed fresh evidence must be assessed holistically, in the context of the evidence heard at trial.

[29] The “due diligence” factor is succinctly summarized in R. v. Hay, 2013 SCC 61 at paras. 64-66:

64 The due diligence criterion exists to ensure finality and order—values essential to the integrity of the criminal process: [citations omitted]. The due diligence requirement calls for a [court] to consider the reason why the evidence was not presented at trial, R. v. B. (G.D.), 2000 SCC 22, at para. 20. However, this Court has recognized that “due diligence is not an essential requirement of the fresh evidence test, particularly in criminal cases” and that the “criterion must yield where its rigid application might lead to a miscarriage of justice”, para. 19. Nonetheless, it is an important factor to be considered in the totality of the circumstances.

[30] In R. v. Kos-Rabcewicz-Zubkowski, 2019 ONCA 234 at para. 15, the Court of Appeal re-emphasized that “the due diligence requirement must yield in order to avoid a miscarriage of justice”.

[31] In R. v. Arabia, 2008 ONCA 565 at paras. 49-52, Watt J.A. addressed the remedies available after a finding of guilt has been recorded:

49 The authorities, like Kowall, which involve the proffer of further evidence after a finding of guilt has been recorded contemplate two remedies: i) re-opening of the defence case; and ii) declaration of a mistrial. As a general rule, permission to re-open would be followed by setting aside the prior finding(s) of guilt, reception of further evidence, together with any evidence offered by the prosecutor in reply, the submissions of counsel, and a decision on the adequacy of the prosecution’s proof in light of the new evidence. In some instances, of course, a decision to receive the further evidence might require declaration of a mistrial …

50 Kowall and cases following its lead furnish trial judges with workable criteria the application of which will inform the decision on re-opening. But where re-opening is permitted and a decision made to allow the introduction of further evidence, the trial judge will then be required to determine whether to continue proceedings to verdict, or to terminate them prior to final decision. Kowall and subsequent cases do not explore the preferential ordering of available remedies, or articulate the factors according to which the trial judge is to decide which is the more appropriate remedy.

52 … it is well-settled that the authority to declare a mistrial should only be exercised in the clearest of cases. [citations omitted]. There seems no reason in principle to apply any less rigorous standard to applications for the same remedy made after verdict or judgment.

Application of Governing Principles

[32] I now apply the governing principles to the proposed evidence.

[33] The nature of the proposed evidence, its subject matter and its availability must be examined in the context of the Palmer factors requiring consideration on an application to reopen. I am mindful that it is the potential probative value of the proposed evidence that must be assessed in the context of the evidence heard at trial.

Admissibility and Cogency

[34] The cell phone record appended to the Fortier Affidavit is R.G.’s monthly invoice from Rogers with a billing date of October 12, 2019 and a due date of November 8, 2019. The invoice sets out “wireless voice usage details” from September 13, 2019 to October 12, 2019.

[35] The “wireless voice usage details” in the Rogers invoice, as explained in the Fortier Affidavit, is admissible evidence that is reasonably capable of belief as it relates to incoming and outgoing calls and the general locations of the two cell phones at the time of incoming and outcoming calls.

[36] The cell phone evidence has potential probative value but would not be decisive or potentially decisive on its own.

Due Diligence

[37] The Rogers invoice is not new evidence to R.G. or evidence that was outside his realm of knowledge. The accounts for both his cell phone and the complainant’s cell phone were in his name. The usage details for both wireless numbers were on one monthly invoice. R.G. did not need permission to access the complainant’s cell phone records, including the monthly invoice appended to the Fortier Affidavit.

[38] At the relevant time, R.G. was actively dealing with his Rogers wireless account. On October 7, 2019, R.G. sent a text message to K.G., which was marked as trial exhibit 6, advising that he was taking the complainant off his cell phone plan. The message stated, in part, “She needs to look into another phone plan because she won’t be on mine anymore as of the end of the month.”

[39] Text messages between the complainant and her mother were marked as trial exhibits. The fact that the complainant was on the accused’s cell phone plan was the subject matter of testimony from both the complainant and her mother.

[40] The subject matter of the proposed evidence relates to a time-period within approximately 2 months of R.G.’s arrest on November 19, 2019 in circumstances where R.G. knew that he was the subject matter of a police investigation by October 8, 2019. As set out in the Agreed Statement of Facts, marked as trial exhibit 7:

2. On October 4, 2019, the O.P.P. attended the home of R.G. in Caledon, Ontario to assist in retrieval of [the complainant’s younger brother].
3. By October 8, 2019, Caledon O.P.P. had advised R.G. that there was an open joint CAS and Police investigation regarding him and his children.
4. On November 19, 2019, R.G. was arrested.

[41] The proposed evidence was available to R.G. before and during the trial— both with respect to events of October 3, 2019 and what counsel characterized as an uncharged incident in September 2019.

[42] The subject matter of the proposed evidence does not relate to the subject matter of the findings of guilt for the offences between 2011 and 2017.

[43] The subject matter of the proposed evidence, namely cell phone contact or lack thereof between the complainant and R.G. on October 3, 2019 and R.G.’s whereabouts on October 3, 2019 and September 16, 2019, was directly within the knowledge of R.G.

[44] With the exercise of due diligence, the proposed evidence could have been adduced at trial and/or formed the basis for cross examination of crown witnesses. I am mindful that due diligence is but one factor and “must yield where its rigid application might lead to a miscarriage of justice”.

[45] However, R.G. did not need cell phone records in order to testify or to put forth the position that he did not call the complainant on October 3, 2019 and/or did not attend [x-Town] on that date. Neither proposition was put to the complainant during her cross examination.

[46] R.G. did not need cell phone records in order to testify or to put forth the position that he was not in [x-Town] on September 16 and/or did not call the complainant’s school in order to have her excused from class on that or any other date.

[47] The Agreed Statement of Facts, marked as trial exhibit 7, specifically addressed the fact that S.B., the mother of the complainant’s boyfriend, “reported that [the complainant] had disclosed sexual assaults involving her father to S.B. on September 26, 2019”. The decision not to cross examine the complainant about the content, extent or manner of her disclosure to her boyfriend’s mother, S.B., was a choice, not an oversight.

[48] As to the “uncharged incident”, the September 16, 2019 date assigned to the incident was not provided by the complainant, but was a conclusion reached by K.G. and/or the police through a process of elimination involving school records.

[49] The Agreed Statement of Facts, marked as trial exhibit 7, was finalized and presented at the end of the third day of trial, being April 1, 2021. Counsel presented the Agreed Statement of Facts after both the complainant and her mother had been thoroughly cross examined. In presenting the Agreed Statement of Facts, both counsel noted that the statement had just been finalized.

[50] The crown closed its case on April 1, 2021. At the conclusion of the crown’s case and after the Agreed Statement of Facts was presented and marked as an exhibit, trial counsel for R.G. indicated that he was having ongoing discussions with R.G. about trial strategy and whether the defence would be calling evidence. On behalf of R.G., trial counsel asked to defer that decision until the fourth day of trial scheduled for April 7, 2021, with a commitment to give the crown advance notice of the decision. It was a perfectly reasonable request and granted by the Court without hesitation.

[51] R.G. chose not to testify and chose not to call evidence. They were his decisions to make. These were not rushed decisions made in the midst of a trial day or immediately after the close of the crown’s case. Time was appropriately taken for reflection and analysis. Trial counsel’s competence is not in issue.

Conclusion

[52] These are not exceptional circumstances. This is not a case where the exercise of the power to vacate an adjudication of guilt before the imposition of sentence is “clearly called for”.

[53] The proposed evidence was available to R.G. before and during the trial. The accounts for both his cell phone and the complainant’s cell phone were in his name. The subject matter of the proposed evidence, cell phone usage and his whereabouts on the dates in question, was within his knowledge and related to the time-period shortly before he was notified of the police investigation.

[54] R.G. did not need cell phone records in order to testify or advance the position that he did not call the complainant on October 3, 2019 and/or did not attend [x-Town] on October 3, 2019. This is not a scenario where the cell phone evidence stands on its own or would be potentially decisive on its own.

[55] The Application for an order reopening the trial and declaring a mistrial is an attempt to reverse tactical decisions made at trial. The scope of cross examination and the decision to address some issues by way of an Agreed Statement of Facts are tactical decisions. The choices of whether to testify or call evidence are tactical decisions. R.G. made those tactical decisions. He chose not to testify. He chose not to call evidence. R.G. is not entitled to await the verdict and then recast those choices or decisions. A trial is not some kind of preliminary inquiry: Kowall, at para. 40.

[56] Likewise, this is not a case where some minor fact unexpectedly took on overwhelming importance in the Reasons for Judgment. The credibility and reliability of the complainant’s testimony, the presumption of innocence and the crown’s onus of proving its case beyond a reasonable doubt were clearly the key issues on this trial. The complainant was thoroughly cross examined and challenged as to both her credibility and reliability as a witness.

[57] In summary, these are not exceptional circumstances and this is not a case where the exercise of discretion to vacate the adjudications of guilt is “clearly called for”. As the Ontario Court of Appeal emphasized in Kowall, “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.”

[58] This Application is indeed an attempt to reverse tactical decisions made at trial —decisions made with the benefit of legal advice, with time for reflection and analysis, with knowledge of the subject matter of the proposed evidence and with access to the records for both cell phones. As aptly noted by the crown, R.G. had 16 months to develop, investigate and disclose an alibi for the October 3, 2019 offences. He chose not to testify. He chose not to call evidence. He is bound by his choices.

[59] This is not a scenario where a reopening and/or declaration of a mistrial is required to prevent a potential miscarriage of justice.

[60] The test for reopening and/or declaring a mistrial has not been met. The Application is dismissed.

Released: March 24, 2022 Signed: Justice K.L. McKerlie