CITATION: R. v. A.A.R., 2017 ONSC 5169

COURT FILE NO.: 14-SA-5035

DATE: 20170907

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

A.A.R.

Applicant

Anya Koortenar, for the Crown

Esmaeil Mehrabi, for the Applicant

HEARD: August 2, 3, and 4, 2017 (Ottawa)

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

defence application to reopen the case to admit fresh evidence

toscano roccamo j.

Introduction

[1] On November 15, 2016, following a 7 day trial without a jury, I convicted the Applicant, A.A.R. (A.R.) of one count of sexual assault and one count of touching for a sexual purpose, the body of N.S. on February 27, 2014, when she was 14 years of age. The count of sexual assault was conditionally stayed at the request of crown counsel pursuant to the principles laid out in Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R 729. My Reasons for Decision are detailed in R. v. A.A.R., 2016 ONSC 5485, 135 W.C.B. (2d) 415.

[2] A pre-sentence report was ordered and the date for sentencing was set for March 30, 2017. The sentencing was deferred at the request of the Applicant, who raised concerns about the lack of suitable interpretation for preparation of the pre-sentence report, given that his first language is Urdu. As such, the sentencing was rescheduled to June 26, 2017.

[3] In early June, 2017, the Applicant gave notice that he had retained new counsel, and required a further adjournment of the sentencing in order to bring this application to reopen his trial to adduce the fresh evidence of A.Q., and A.M.M. His Notice of Application dated July 24, 2017 reflects that, if successful, the Applicant would invite me to declare a mistrial, or in the alternative, make an order to continue the trial to receive the fresh evidence.

[4] On August 2, 3, and 4, by way of blended voir dire, I received viva voce evidence from A.Q. and A.M.M. in addition to their sworn affidavits forming part of the record. I also received additional testimony from the Applicant in relation to a supplementary affidavit he swore in support of the application. The supplementary affidavit purported to address the question of when he was first informed of the fresh evidence of A.M.M., and what information was conveyed to his former counsel in relation to information from A.M.M. at times material to this application. The supplementary affidavit was served in response to my inquiry about whether I would receive evidence as to the tactical decisions, if any, made by former counsel not to call the evidence of A.Q. and A.M.M. before my decision was released, or at trial. The Application Record contained no affidavit to that effect from the Applicant’s former counsel.

[5] Upon the conclusion of the voir dire, and after hearing the submissions of counsel, I dismissed the application on August 4, 2017, with reasons to follow. These are my reasons.

Grounds for the Application

[6] The Applicant alleged that, after his conviction, A.M.M. came forward to advise that the complainant, N.S., had personally spoken to him in March 2014 shortly after the Applicant was arrested and charged with these offences, and confessed to him that the criminal allegations were fabricated in order to secure a monetary settlement, or for nefarious purposes. Furthermore, the Applicant attested to the fact that after the conclusion of trial but prior to conviction, the Complainant’s mother, S.S. made a further attempt with the assistance of A.Q. to negotiate a monetary settlement on behalf of her daughter, N.S. The offer to dispose of the criminal charges in exchange for a cash settlement was rejected by the Applicant who maintains his innocence to the present date.

[7] The Applicant argued that the information conveyed by A.M.M. as to N.S.’s motive to fabricate and her family’s continued efforts to broker a monetary settlement goes to the heart of her credibility. He took the position that, as there was little to no physical evidence received at trial, the essential facts that led to conviction were based upon this Court’s findings of credibility in favor of the Complainant and strong adverse findings of credibility against the Applicant. As such, he maintained that the interests of justice required that the case be reopened to receive the fresh evidence.

[8] The Application Record, entered as Exhibit #2 on the hearing of the matter, reflects that the Applicant considered a declaration of mistrial to be the only reasonable remedy, based on the contention that, any attempt to rebuild the Applicant’s credibility in the event the application succeeded, would be disingenuous and infected by my prior adverse findings. However, at the conclusion of the application and in submissions made by the Applicant’s counsel, he candidly expressed the fact that he was “conflicted” about whether a mistrial was necessary.

Findings of Fact and Credibility at Trial

[9] The Application Record and related submissions suggest that my findings at trial were the outcome of a credibility contest between the Applicant and the Complainant.

[10] At the outset, I must observe that if this were in fact the case, such a result would involve prohibited reasoning and would run afoul of the analytical dictates imposed by R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 [W.(D.)] at pp. 757 to 758. While there is no question that I considered N.S.’s credibility to be essential to the Crown’s case, a careful reading of my Reasons would reveal that I found the Applicant could not be believed based on three separate and conflicting versions of events he proffered as to the incident that took place on February 27, 2014, between him and the Complainant, and I concluded that his evidence left me in no reasonable doubt. This evidence was detailed at paras. 178 to 184 of my Reasons at trial. Moreover, I considered the frailties of the Complainant’s evidence, noted her memory to be imperfect with respect to certain collateral matters, but otherwise found her credibility with respect to the decisive issues was unimpeached.

[11] However, it is important to point out that the Complainant’s evidence was buttressed by a strong body of evidence, both oral and documentary, which left me in no reasonable doubt as to the Applicant’s guilt.

[12] G.A. offered evidence corroborative of the Crown’s case. G.A. who met N.S. for the first time on February 27, 2014 and in whose vehicle the Applicant, N.S and members of G.A.’s family traveled from Toronto to Ottawa to visit the Aga Khan, vigorously disputed the suggestion that she colluded or discussed the allegations with N.S. G.A. described N.S. as the quiet and respectful young charge of the Applicant and corroborated N.S.’s evidence that the Applicant introduced her as his brother’s daughter. She testified that upon arrival at the Ottawa hotel, and after learning that there was only one bed and one sofa in the room she booked for A.R., she asked him if he wanted another room for N.S. However, he declined on the basis that she would sleep on the sofa in his room. This, coupled with the fact that he represented N.S. to be his niece, attenuated her concerns that N.S. would sleep in his room, a fact that would otherwise be discouraged by the cultural norms shared by Muslims of the south Asian community to which all of them belonged.

[13] G.A. also testified as to how scared and traumatized N.S. looked when police brought her to G.A.’s room to wait until she was taken to a safe place by the Children’s Aid Society, after N.S. reported to police that she had been sexually assaulted by A.R. As a trained social worker, G.A. refrained from asking N.S. any questions other than asking if she was warm and offering her something to drink.

[14] I also received the evidence of Cst. Kristina Correa, the first police officer to arrive on the scene after Toronto police alerted Ottawa police that a young girl locked in a bathroom at the Quality Inn on Rideau Street in Ottawa, had texted a friend for help because her uncle was trying to have sex with her.

[15] Although Cst. Correa did not make notes of the incident other than an Investigative Action, nor did she prepare a diagram of the layout of the hotel room where she found N.S. with A.R., I accepted her recollection as having been based on an independent memory of the events. As a police officer largely assigned to patrol the Market area, which required her to respond mainly to bar fights, the incident at the Quality Inn was unique and thus notably stood out in her memory.

[16] Cst. Correa’s evidence ran contrary to the version of events proffered by A.R. that N.S. was given a pillow and blankets and slept on the sofa. It also ran contrary to information he gave to police in his interview following arrest, that he put pillows down the center of the bed between him and N.S. Cst. Correa’s recollection corroborated N.S.’s evidence in that the hotel room, furnished with a standard hotel bed with pillows, bed sheet and a comforter, appeared to her as though people slept in it. She did not see blankets only on one side of the bed as suggested in testimony by A.R. nor were there pillows other than at the head of the bed where they would normally be found. The room had a standard couch, which could have been a “pull out”, but it was not pulled out when she arrived at the scene.

[17] Like G.A., upon her arrival at the hotel and after gaining entry to the room of A.R., she found N.S. to be very shaken up, with eyes wide open and teary. I accepted the description both she and G.A. offered of N.S.’s emotional condition as circumstantial evidence corroborative of N.S.’s own description of her state of mind when attempting to extricate herself from danger after being sexually assaulted by A.R. This demeanor evidence was not seriously challenged and, in my opinion, was capable of corroborating the truth of N.S.’s account as it did that of the complainant in R. v. N.(R.), 2016 ONSC 2009, 129 W.C.B. (2d) 295, at paras. 19 and 20.

[18] Finally, there is important physical evidence in the time stamps of text messages tendered in Exhibit #4 at trial, which while not offered nor received for the truth of their contents, also corroborated N.S.’s testimony about the unfolding of key events. These are detailed at para. 192 of my Reasons for Decision at trial.

[19] In short, this was no “he said – she said.” A conclusion of this sort would diminish the strength of the Crown’s case as I found it, and would run contrary to the reasoning in W.(D.).

The Law

[20] On an application of this kind, the following legal principles are instructive:

1. A trial judge is not functus officio and may reopen a case before the sentence has been imposed or before he/she has otherwise disposed of the case” R. v. Lessard (1976), 1976 CanLII 1417 (ON CA), 30 C.C.C. (2d) 70. (Ont. C.A.)

2. Following a finding of guilt, the power to reopen should only be exercised in exceptional circumstances: Lessard at p. 73, R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 12.

3. A trial judge confronted with an application to reopen exercises a gatekeeper function. The trial judge has first to decide whether there is an air of reality to the application, and the defence bears a heavy onus in this regard: R. v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354, at para. 42.

4. The evidence tendered on an application to reopen must fully and clearly be described in the affidavits in support: R. v. M.D.S., [2014] B.C.J. No. 332 (B.C. Prov. Ct.) at para. 35, reversed on other grounds. Failure to support the affidavit evidence with the viva voce evidence of its affiant risks a finding that the evidence is insufficient, contains a paucity of detail and may be so flimsy as to warrant no further consideration, much less admission: See Arabia, at para. 42.

5. A trial judge’s decision about whether to permit reopening of the case after an adjudication of guilt involves an exercise of judicial discretion. If the discretion is exercised in accordance with governing legal principles, it will not be reviewable, absent palpable and overriding error: R. v. Kippax, 2011 ONCA 766, 286 O.A.C. 144, at paras. 64 to 65; R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at pp. 1002 to 1003; and R. v. Hayward (1993), 1993 CanLII 14679 (ON CA), 86 C.C.C. (3d) 193 (Ont. C.A.), at para. 20.

6. In R. v. Kowall (1996), 1996 CanLII 411 (ON CA), 108 C.C.C. (3d) 481 (Ont. C.A.) at pp. 493 to 494, the court laid out the test for the exercise of the discretion to reopen a case after conviction, as follows:

The test for reopening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 1993 CanLII 14679 (ON CA), 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), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193, at p. 205 (SCC) (see: R. v. Mysko (1980), 1980 CanLII 2057 (SK CA), 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; 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.

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. 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.

Due diligence

7. Where an applicant after conviction learns that another accused tried for the same offence is acquitted and has thus laid in question the credibility of the complainant, a finding can be supported that the evidence could not have been tendered by due diligence, as the applicant could not have anticipated the complainant’s contradictory testimony at a subsequent trial: R. v. El-Abyad, 2007 CanLII 21599 (ONSC).

8. Where the fresh evidence comes from a witness both known and available at the time of trial and goes to a key issue for adjudication, a finding may be made that, by the exercise of due diligence, it could have been adduced at trial, and therefore ought not to have been admitted: Kowall at p. 18. However, the failure to exercise due diligence to locate the witness or to tender the fresh evidence in advance of conviction, is but one factor to be considered and weighed against the strength of the other criteria set out in the Palmer/Kowall test and in the interests of justice: see R. v. Warsing, 1998 CanLII 775 (SCC), [1998] S.C.J. No. 91, at para. 20; R. v. Kelly, [2008] O.J. No. 574 (Ont. S.C.) at para. 37; R. v. Drysdale, 2011 ONSC 5451, 275 C.C.C. (3d) 219, at para. 19; and M.D.S., at para. 16 to 18.

Relevance to a decisive or potentially decisive issue at trial

9. In Arabia at para. 69, the court described the threshold for relevance as a modest one. So long as the item of evidence can reasonably show that the fact sought to be established is “slightly” more probable than not, then the threshold will be met.

10. Where the evidence proffered is collateral to the issues pertaining to the guilt of the accused, as in an attack on a complainant’s credibility in reference to a matter unrelated to the guilt of the accused, it will not be relevant and will be found inadmissible: see B.J.H. at paras. 29 to 30 citing R. v. B.(A.R.) (1998), 1998 CanLII 14603 (ON CA), 41 O.R. (3d) 361 (Ont. C.A.) (aff’d 2000 SCC 30).

Credible evidence capable of belief

11. As expressed by the court in Arabia at para. 71, relevance alone will not be enough to warrant reopening of the defence. The evidence proposed must be credible, reasonably capable of belief, and admissible in accordance with the law of evidence.

The fresh evidence would have affected the result

12. Relevant and credible evidence, which might well have been received but for the failure to exercise due diligence, will not be received as fresh evidence if its admission would not have made a difference to the result: see Kelly at paras. 40 to 51; and M.D.S.at para. 33.

Was the evidence not tendered at trial for strategic reasons as a tactical decision?

13. The court in Kowall at para. 40 made plain, “a trial is not some kind of preliminary inquiry allowing the parties to recast their case depending upon the reasons for judgment.”

14. Where there is no evidence tendered to suggest the failure to adduce the evidence was not a considered decision, although not determinative, may be considered an important factor weighing against the admission of fresh evidence: see B.J.H. at para. 20; Kelly at para. 61; and M.D.S. at para. 37.

15. Exceptional circumstances that justify a court’s exercise of discretion to reopen in the interests of justice have included the following:

a) Where between conviction and sentencing, a trial judge, reconsidered the cumulative effect and totality of the frailties of the evidence against an accused, and decided not to convict, erred in law by entering an acquittal without affording counsel the opportunity to make submissions: see Griffith at paras. 28 to 33.

b) Where the application is advanced to put forth a new defence based on evidence already received at trial, where refusing to do so prevents an injustice or unfairness to an accused: see R. v. Calero-Viteri, [2011] O.J. No. 6706.

c) Where in an NCR hearing, the trial judge was uninformed about an agreement between counsel to admit statements of a mentally ill accused made to the assessing psychiatrists on the question of his appreciation of the moral wrong doing of his actions, and the statements underpinned the experts’ competing opinions on this issue, it was in the interests of justice to reopen due to the unfairness of the process to a vulnerable offender: see R. v. Sualim, 2017 ONCA 178, 135 O.R. (3d) 81, at paras. 31 to 35, and 39.

Remedy

16. Citing R. v. R. (A.J.) (1994), 1994 CanLII 3447 (ON CA), 94 C.C.C. (3d) 168 (Ont. C.A.) at 174 and R. v. Paterson (1998) 1998 CanLII 14969 (BC CA), 122 C.C.C. (3d) 254 (B.C.C.A) at paras. 93-98, the court in Arabia held: “while there may be some uncertainty about the precise standard a judge is to apply in determining whether to declare a mistrial before verdict or judgment, it is well settled that the authority to declare a mistrial shall only be exercised in the clearest of cases. There seems no reason in principle to apply any less rigorous a standard to applications for the same remedy made after verdict or judgment.”

Although appellate courts have not identified the preferential ordering of remedies nor articulated the factors to be considered in selecting a remedy in case where the Palmer/Kowall criteria are met, and it is in the interest of justice to reopen the defence case, a court ought to consider all remedies, including mistrial: Griffith at paras. 37 to 42, citing with approval Drysdale at para. 40.

The Fresh Evidence

[21] The Application Record included the statutory declaration of A.Q. sworn September 27, 2016, the affidavit of A.M.M. sworn July 4, 2017, and an affidavit from the Applicant, sworn July 28, 2017. In addition, I heard testimony from all affiants at the voir dire held between August 2 and 4, 2017.

A.Q.

(a) The Statutory Declaration

[22] A.Q. is a resident of Montreal and, as an ex-President of the Pakistan Peoples’ Party in Quebec, he travelled to Toronto on August 6, 2016 to discuss party matters with A.M.M., who was an ex-Senior Vice-President of the party. They were both acquaintances of the Applicant and the complainant’s late father.

[23] At dinner at A.M.M’s house on August 6, 2016, they discussed the criminal matter pertaining to the Applicant. After dinner, he and A.M.M. went for a “casual evening drive.” They drove near the complainant’s residence, and A.M.M. took him to visit her mother, S.S., and the other children of their late friend.

[24] After tea and light snacks at the home of S.S., A.M.M. and S.S. took A.Q. to a separate room and asked him to convey to A.R. a message inviting him to pay $30,000 cash to S.S. in exchange for the withdrawal of the criminal case against him.

[25] On August 7, 2016, A.Q. phoned the Applicant and arranged to meet him at his home for lunch. There, he conveyed the settlement proposal, but the Applicant maintained his innocence and refused to pay any amount.

[26] A.Q. did not inform A.M.M. or S.S. of the Applicant’s decision.

(b) Evidence at the Voir Dire

[27] A.Q. confirmed that his Statutory Declaration was accurate and complete and that he was under no time constraints to prepare it.

[28] He confirmed that he has been a good friend of the Applicant for the past four years.

[29] As the Applicant was an ex-President of the Pakistan Peoples’ Party for Toronto and chaired the Toronto Chapter, A.Q. wanted the Applicant’s endorsement when he ran for office in the upcoming Canada-wide party election.

[30] A.Q. confirmed that he, A.M.M., and the Applicant drove to Ottawa together for the hearing of this application. They stayed in the same hotel, but in separate rooms. He stated that they did not discuss their evidence to be given at the hearing.

[31] When he met with A.M.M. the evening of August 6, 2016, and discussed the criminal matter against the Applicant, A.M.M. did not tell him that N.S. had confessed to him that she had fabricated the allegations, despite the fact that A.Q. has been a good friend of A.M.M.’s for 30 years, and they discuss important matters.

[32] Although it seemed implausible, A.Q. suggested that he and A.M.M. had no destination in mind the evening when they went out for a “casual evening drive” and they ended up at N.S.’s residence. He confirmed that A.M.M. lives in Mississauga, west of Toronto, and that they drove up to one and a half hours to the S. residence in Scarborough, east of the downtown core of Toronto.

[33] A.Q. testified that, although he asked N.S. to join him, S.S. and A.M.M. for private discussions about the criminal matter, N.S. declined and stated that she would do whatever her mother wanted. This was not a detail contained in his Statutory Declaration.

[34] A.Q. conversed privately with S.S. and A.M.M. in S.S.’s bedroom for about half an hour at the end of which it was agreed that he would speak with the Applicant to invite him to pay $30,000 cash to S.S. in relation to the criminal matter. He agreed that it was A.M.M.’s idea to broker the $30,000 settlement, as a friend of the S. family, and that S.S. just agreed to the terms of settlement. Again, A.M.M. did not tell him that N.S. had fabricated the allegations.

[35] Although I did not accept his evidence as opinion evidence about cultural and religious norms under Islamic law, but only as evidence of the practice and custom followed by the witness himself, he gave evidence that, in the rare case, an agreement called a “Punshai” may be struck between a victim and an offender to compensate for wrongdoing. The settlement agreement takes place between adults. As such, parents can represent the interests of their children.

[36] A.Q. described the discussion with A.M.M. and S.S. as one such agreement in keeping with his understanding of the custom and religion. He noted that he himself, A.M.M. and S.S., as well as the Applicant are all Muslims, albeit of different sects in Pakistan. Despite sectarian differences, A.Q. maintained that the practice was universal throughout Pakistan, their country of origin. He added that he, and the S.s’ were Suni Muslims, as was the Applicant, and that he could only speak to the practice of Suni Muslims.

[37] The most important piece of evidence he offered was that he agreed to convey to the Applicant the settlement agreement discussed with S.S. and A.M.M., because it was an acceptable means to rectify a proven wrong. He would not have agreed to convey the offer to the Applicant if a crime had not been proven, as this would have made no sense to him.

[38] When A.Q. met with the Applicant for lunch on August 7, 2016, he was taken to a separate room to convey the S.s’ offer to withdraw the criminal charges for $30,000 cash. He informed the Applicant that his sexual impropriety would be forgiven, conditional upon payment.

[39] A.Q. was not made aware at the meeting with S.S. and A.M.M. that the evidence had all been tendered in the criminal proceedings by August, 2016, and that the Applicant was awaiting a verdict.

[40] A.Q. confirmed that on September 19, 2016, he travelled to Ottawa and spoke with the Applicant’s former counsel, Mash Frouhar. He gave her all of the information contained in the Statutory Declaration.

[41] On behalf of the Applicant, it was admitted that Ms. Frouhar received a copy of the Statutory Declaration. What was not addressed in testimony was whether or not the witness communicated by telephone or in writing with Ms. Frouhar before he met with her on September 19, 2016; although this would no doubt have been the case in order to make arrangements to meet and to determine whether a meeting was warranted.

A. M. M.

(a) The Affidavit

[42] A.M.M. stated that in March 2014 he met with S. and N.S., who informed him of the criminal allegations. He asked to speak privately with N.S., whereupon she allegedly informed him that the Applicant had never harassed or touched her; that the allegations reported to police were false; and that she held a grudge against the Applicant for refusing to “go along with their plans for her sister’s wedding”, a matter which became the subject of a dispute between the S.s and the Applicant. He offered no details pertaining to the dispute.

[43] A.M.M. also stated that on the way to Ottawa, G.A., who had her own personal grudge against the Applicant for refusing to support her against her late husband’s second wife, told N.S. that she could frame the Applicant when she went with him to the hotel room.

[44] A.M.M. stated that several months later, he met again with N.S. and her mother. On this occasion, N.S.’s mother told him that they would be willing to resolve the criminal matter with A.R. for $30,000 cash. As their friend, he said he would speak with A.R. on their behalf. Before leaving the meeting, A.M.M confirmed the terms of the offer with N.S. and she agreed to it. Several weeks later, he called the Applicant to convey the discussions he had with the S.s’, but based upon his lawyer’s instructions, the Applicant refused to speak with him.

[45] In August 2016, A.M.M. met with N.S.’s mother a third time, in the presence of A.Q., and she again brought up the $30,000 settlement proposal with A.Q. who agreed to take it to the Applicant.

[46] A.M.M. stated that he never told anyone what N.S. said to him about the events of February 27, 2014. It was only after he found out that the Applicant had been convicted that he became upset and reached out to tell the Applicant about N.S.’s confession.

[47] Finally, A.M.M. disclosed that the met with N.S. and her mother the week before swearing his affidavit of July 4, 2017. At that time, S.S. told him that she had learned that the Applicant had retained new counsel and that A.M.M. had informed new counsel about what N.S. had said to him in 2014. S.S. was said to have threatened to spread rumours about A.M.M. and to tell police false stories about him, too. A.M.M. informed her that he was not interested in being involved with them or with the Applicant, but felt it important to divulge to the court what N.S. told him, so that the truth would come out.

(b) Evidence at the Voir Dire

[48] A.M.M. testified that he has been in Canada for 50 years. He denied having a criminal record for fraud. A record of a fraud conviction entered by a court in Montreal, Quebec on August 30, 1994, was put to him and tendered as Exhibit 1 at the voir dire. A.M.M. confirmed that the record contained his name and date of birth, but claimed that a younger brother, whose date of birth he could not remember and whom he described as a fraudster, had posed as A.M.M. Rather than take issue with the criminal record wrongfully entered against him, A.M.M. suggest that he has lived with it for over 20 years.

[49] A.M.M. confirmed that the contents of his affidavit were complete and accurate, that he was in no rush to prepare it, and had had the benefit of a certified Urdu interpreter before attesting to its truth.

[50] He first confirmed that he had been a good friend of the Applicant’s for five years, but when his testimony resumed the following morning, he clarified that he had once been a good friend of the Applicant’s but became “disconnected” over the events that are alleged to have taken place on February 27, 2014, involving N.S.

[51] He confirmed that he prepared the affidavit because he wanted the truth to come out about what he had heard from N.S. herself. He wanted justice to be done.

[52] A.M.M clarified that, before meeting with S.S. and N.S. at his home in early March 2014, he had already been advised by others about the criminal allegations but did not believe them. After being told of the matter by S.S., he then believed it, and agreed that the sexual assault of a child was a serious matter. Later on the same day, while meeting privately with N.S., he confirmed it was “absolutely correct” that N.S. told him the allegations were false.

[53] It was put to A.M.M. that, as one who wants justice to be done, he would have told his friend the Applicant that the allegations against him were false. In response, A.M.M. offered new evidence to the effect that he tried to tell the Applicant twice over the phone about the fabrication, but that the Applicant hung up after stating that he did not have his lawyer’s permission to speak. A.M.M. confirmed that he did not disclose what N.S. had said to him to anyone, including his wife, or police. When pressed to explain why he would allow his friend to go through the anguish of criminal proceedings, he suggested he did not know this would be the case, and thought that because the Applicant was innocent of any sexual impropriety, no court would punish him.

[54] When asked why his affidavit failed to mention two attempts to tell the Applicant about what N.S. had allegedly told him, he gave an odd response to the effect that he saw no reason to, as the Applicant refused to listen to him.

[55] He added other detail omitted from his affidavit in stating that the second time that he met with S.S. and N.S. was sometime in June or July 2014, when S.S. advised him of their willingness to accept the sum of $30,000 to withdraw the criminal allegations.

[56] When pressed about whether he made any attempt to contact the Applicant between March 2014 and July 2014 to advise him of what N.S. had told him, A.M.M. again added new detail in responding that he tried to call several times, but that the Applicant would not receive his call. When it was put to him that this, too, was not in his affidavit, he replied that he was old, had memory problems and suffered a heart condition for which he has had several stents installed.

[57] He admitted that he had trouble recalling things from years ago and had not taken notes of his conversation with N.S. He admitted that when he telephoned the Applicant the first time after speaking with N.S. in March 2014, he began the conversation by stating that N.S. had lied about the allegations, but then strangely added that he did not know if the Applicant heard him. When pressed to recall the number of times he told the Applicant that N.S. had lied before the Applicant hung up, he could not recall the exact number of times, but said that it was more than once.

[58] When asked why he did not advise N.S.’s mother that N.S. had lied to police, he departed from the affidavit and said that he did tell N.S.’s mother two months after speaking with N.S. that she had lied, but that S.S. told him that whatever N.S. told her was correct.

[59] He confirmed the statement in his affidavit that N.S. told him that, on the way to Ottawa on February 27, 2014, G.A. told her she could frame the Applicant after she went to his hotel room. How this could happen when they all travelled in the same vehicle was not explained in his affidavit, or in oral testimony.

[60] In testifying about the grudge N.S. had against the Applicant in respect of her sister M.S.’s wedding, he confirmed that he was a guest at the wedding but was treated like a “common person” and “not given a special place.” He described the wedding ceremony that took place in August 2013 as “okay.” He acknowledged that it seemed crazy that N.S. would invent the allegations against the Applicant because of her sister’s wedding.

[61] A.M.M agreed that he had a close relationship with N.S. while her father was alive, but suggested this was less so after her father died. He acknowledged that he was involved in her upbringing and that she was close enough to tell him without hesitation that she had lied to police about the events of February 27, 2014; nevertheless, he did not know N.S.’s birthday and only estimated that she was presently around 18. He did not know what grade she was in, or what high school she attended in Scarborough.

[62] When it was put to him that A.Q. testified that, in their culture, it was appropriate for an offender to pay settlement money to a victim after a crime, he acknowledged that this was the case and that he had heard of the practice, although he did not have too much knowledge about religion, and did not believe in the practice.

[63] A.M.M. was asked to explain why he tried to broker a settlement of $30,000 between the S.s’ and the Applicant, when N.S. had said that it was all lies. Once again, he added new detail to his affidavit and insisted that in speaking with S.S. he questioned why he should ask for money when the Applicant had done nothing wrong. He went on to testify that the allegations were “100% false” and that there was “another story behind it.” He agreed that it was wrong to ask the Applicant to pay any money, not only because the allegations were false, but because he could not afford the $30,000 demand while supporting a wife and four children. Yet, when pressed again, A.M.M. admitted that he conveyed the settlement offer to the Applicant.

[64] It was put to him that the Applicant had testified at trial that A.M.M. informed him that his photograph was in a newspaper article about the criminal allegations which caused him disrepute. A.M.M. denied any such conversation with the Applicant about his picture being in the newspaper, and said the Applicant was incorrect. He also denied the Applicant’s trial testimony that he had said to the Applicant they should all meet and talk quietly about the matter. On the other hand, A.M.M. agreed that he told the Applicant that no one needed to know about the matter, and that they could try to arrive at a settlement, if the Applicant would speak with him.

[65] When pressed as to why he would make these overtures to an innocent man, A.M.M. retorted that N.S. made the offer. He then contradicted himself repeatedly, denied that he was “the messenger” only because the Applicant did not listen, but agreed that he tried to make the settlement offer several times.

[66] He also contradicted the Applicant’s trial testimony to the effect that he told the Applicant a settlement would be arranged because the Applicant “had been caught red-handed.”

[67] In estimating that his phone call to the Applicant in March 2014 lasted between one and two minutes, he back-peddled from his affidavit evidence that he did not inform the Applicant that N.S. had said she had lied, and simply excused himself by suggesting he did not remember because he was mentally ill and had other medical conditions which interfered with his memory. He admitted that it was possible that in June or July 2014 he told the Applicant that N.S. had lied, notwithstanding his affidavit evidence to the effect that he failed to tell anyone about N.S.’s alleged confession because he did not want to become involved. When it was put to him that he was very much involved in attempting to broker the settlement, he steadfastly denied this was the case, despite the overwhelming evidence to the contrary.

[68] A.M.M. was similarly uncooperative in acknowledging that he came to Ottawa with N.S. and S.S. in April 2015 to attend the preliminary inquiry to lend his support. He countered that he did not come to support anyone, but sat outside the courtroom the entire time. He then offered a most unusual detail, also not contained in his affidavit: that he had attempted to enter the courtroom at the preliminary inquiry to speak with the Applicant, but was barred entry by Court Services Officer, Gerry Groves, who attended upon me throughout the hearing from August 2 to August 4. Clearly, he was unaware that Court Services Officers do not serve in the Ontario Court of Justice.

[69] A.M.M. admitted that he sat outside the courtroom at the preliminary inquiry while N.S. testified about criminal allegations he alleged she had admitted to him were fabricated. When pressed to agree that he did not serve justice by telling no one, not the court, not the Applicant’s lawyer or police that N.S. was lying, he offered the excuse that his sole purpose in attending the preliminary inquiry was to transport the S.’s to and from Toronto.

[70] Pressed to agree that he had said nothing to anyone with an interest in the matter because there was no confession by N.S., he persisted that she did confess to him but felt it was not for him to tell anyone. Faced again with the proposition that he attempted to broker a settlement in exchange for withdrawal of the criminal charges because he believed the Applicant to be guilty, A.M.M contradicted the content of his affidavit and his previous testimony by stating he did not send any message of settlement, but that the S.’s made the offer.

[71] A.M.M. attempted to further distance himself from involvement in negotiating the settlement by suggesting that when he drove A.Q. to see the S.’s in August 2016, it was A.Q. who engaged in discussions with respect to a $30,000 settlement. He said that he said nothing at this meeting.

[72] A.M.M. agreed that he has been A.Q.’s friend since 1985. When he was told that A.Q. testified that he was not informed by A.M.M. that N.S. had confessed she had lied to police about the criminal allegations, again, A.M.M. offered clear contradiction to his affidavit by stating he told A.Q. in the presence of S.S. in August 2016 that N.S. had lied.

[73] A.M.M. stated that he did not recall when he learned that the Applicant had been convicted, but thought it was around October 2016, and that he told the Applicant around December 2016 that N.S. had disclosed to him that she had lied.

[74] When it was put to A.M.M. that the Applicant came to him to offer payment to the S.’s after conviction, A.M.M. said that that was not the case because he had no money.

[75] I formed the distinct impression he was skirting the issue.

[76] When told that N.S. had sent an email to Crown counsel on May 31, 2017, tendered in evidence as Exhibit #3 at the voir dire, that she had learned that the Applicant advised a family friend that the criminal allegations were false but asked that the friend speak with the S.’s to offer money to drop the case, A.M.M. denied that he was the family friend involved in these discussions.

[77] A.M.M. denied that the Applicant asked him to prepare an affidavit in order to help overturn his conviction. He seemed to contradict himself by saying the Applicant both did and did not ask for help, in that he did not ask for help to overturn the conviction but was asking for support because “he was going through a hard time.” When it was put to A.M.M. that that is why he did not tell anyone anything about the alleged confession of N.S., he suggested that there was no purpose in doing so, when for three years he had had no contact with the Applicant.

[78] When he was asked why he did not try to write to the Applicant to tell him about N.S.’s confession, he replied that he was afraid the Applicant would take measures against him and that he was unwell.

[79] When it was suggested that A.M.M. could have passed a note to the Applicant at the preliminary inquiry, at first he suggested he did not consider it necessary, but when pressed, resiled from this statement and said that the Applicant was prohibited from talking with him, and that he, too, was covered by a similar prohibition. No evidence was tendered to support this belief.

[80] When it was put to A.M.M. that he could have handed a note to the Applicant’s lawyer at the preliminary inquiry, he simply said he did not want to put himself in any difficulty.

[81] In re-examination, A.M.M. was asked to elaborate on the story behind the grudge held by N.S. and her family against the Applicant. A.M.M. first offered the suggestion that the allegations were pre-planned because the Applicant failed to participate at N.S.’s elder sister’s wedding. He suggested that he learned this from N.S.’s mother because S.S. would not keep anything from him as an old friend. I observe that this too, was not in his affidavit. Secondly, A.M.M. added that when she sat beside G.A. in the car en route from Toronto to Ottawa, G.A. said she was taking her to Ottawa because the Applicant was going to testify in legal proceedings in support of her late husband’s other spouse, and G.A. wanted to assist in punishing the Applicant. However, the uncontradicted evidence at trial was that G.A. met N.S. for the first time as they were preparing to leave the Applicant’s home for Ottawa on February 27, 2014. Moreover, the Applicant and G.A.’s other family members, including her mother and children were also occupants of the same vehicle driven by G.A. to Ottawa.

The Applicant, A.A.R.

The Affidavit

[82] The Applicant confirmed his trial evidence that, soon after the incident involving N.S., he received a telephone call from A.M.M. asking to meet to see if the issue could be resolved by way of a monetary settlement. He confirmed that he declined to do so, on instructions from counsel.

[83] He stated that, only after his conviction did he hear again from A.M.M. that N.S had confessed to him in 2014 that the allegations were fabricated.

[84] The Applicant stated that he only informed his former counsel that someone had called to negotiate a settlement on behalf of N.S. and her family, which he had rejected.

[85] Finally, without indicating the source of his information, the affidavit purported to speak to the knowledge of his former counsel in that he suggested she was not aware of the alleged confession of N.S.

Evidence on the Voir Dire

[86] The Applicant confirmed that his friendship with A.Q. and A.M.M. arose from their involvement with the Pakistan People’s Party of Canada.

[87] He also confirmed that the three of them traveled together from Toronto to Ottawa for the hearing of this application; stayed at the same hotel in separate rooms; dined together and traveled to court together; however, he maintained they did not discuss their evidence concerning these proceedings.

[88] At first, the Applicant denied receiving a telephone call from A.M.M. in March 2014, noting only that it was several months later; however, when confronted with his evidence to the contrary at trial, he stated that he could not remember. He agreed that his memory of events would have been better at trial.

[89] Most importantly, he could not recall if he had received more than one call from A.M.M. in 2014.

[90] After finally agreeing that he received a telephone call from A.M.M. in March 2014, he was unable to recall how long he spoke with A.M.M., the time of the call, or other details of substance, notwithstanding the fact that, because it was the first time he had been charged with a sexual assault, and because A.M.M. was a friend of the victim’s family, he might have retained memory of such an important telephone call. He excused his lapse of memory by noting that his lawyer asked him not to talk with anyone about the allegations, adding that he was innocent and would not have been upset enough by the call to remember it.

[91] Despite having the transcript of his evidence at trial put before him, in which he testified that A.M.M. told him that his photo was in the paper, and that it brought him into disrepute because it indicated he was caught red-handed with the sexual assault, the Applicant denied having said this at trial.

[92] I questioned whether this was a strained attempt to bring his evidence in line with that of A.M.M. at the voir dire, but on further questioning, the Applicant reluctantly agreed he had given this evidence at trial. He then apologized and quickly altered his answer, stating that it was N.S., her mother, and her sister M.S., who called his home and spoke with his wife, providing this information. In a clear attempt to back pedal, he theorized that it was possible that the certified Urdu translator at trial had made an error about A.M.M. providing this information.

[93] He confirmed that he had informed his former counsel before his trial that A.M.M. had called him, although the affidavit filed in this application only reflects that “someone” called to negotiate a settlement.

[94] The Applicant’s memory was notably clearer in relation to the visit from A.Q. He specifically recalled the visit took place on August 7, 2016, and that he informed his former counsel about the meeting at court in September 2016, prior to the release of the verdict in this matter. He also confirmed that A.Q. met with his former counsel in his absence and that he played no part in the preparation of A.Q.’s statutory declaration.

[95] He seemed to tailor his evidence to accord with A.M.M.’s at the voir dire to suggest that, when A.Q. and A.M.M. came to his home on August 7, 2016, A.Q. conveyed the proposed settlement of $30,000 in the absence of A.M.M.

[96] Although it was hard to believe, the Applicant had a better recall of the meeting with A.Q. August 7, 2016 than the important conversation he had with A.M.M. but months ago in 2017, when he was allegedly informed that N.S. had fabricated the allegations. He stated that he simply told A.M.M. to speak to his new counsel. He had no recall about when A.M.M. told him about the fabrication, or where he was when they had the conversation. He claimed to have been “so scared” because A.M.M. tried to speak with him in 2015, a detail he failed to mention in the affidavit filed on this application.

[97] He confirmed that in 2015, A.M.M. came to the preliminary inquiry, and that his former counsel was aware that A.M.M. was present.

[98] He then offered unrelated evidence that his former lawyer simply told him the judge on the preliminary inquiry did not appear to be in his favour and would not accept his documents. He continued to ramble on in different directions, proclaiming that he had spent so much money on this case when he was innocent.

[99] He confirmed that he was shocked to learn from A.M.M. that N.S. told him that she had lied about the allegations; however, because he had no money, he suggested that his former counsel would not receive the information.

[100] It was put to him that the reason that he had no recall about a call of mere months ago from A.M.M. was because it never happened, and that N.S. had made no such confession. He insisted A.M.M. gave him the information that N.S. had lied to police.

[101] He agreed that he had received a settlement proposal from A.M.M. prior to trial, and declined it, as well as a further offer conveyed in August 2016 by A.Q.

[102] He agreed that, upon conviction in November 2016, he knew there was a possibility of jail. He agreed that he then liked the idea of paying money instead of going to jail. In apparent reference to the contents of N.S.’s email to Crown counsel of May 31, 2017, entered as Exhibit #3 at the voir dire, he denied speaking to a friend after conviction and asking this friend to speak with N.S. to request that she accept money to drop the case. He denied approaching A.M.M. to ask him for his help. He denied offering A.M.M. money to help concoct the story about N.S.’s confession to him.

[103] Before the re-examination of the Applicant, his current counsel requested an opportunity to review the background of this case and to cover matters purportedly not explained by his former counsel, on the basis that the Applicant was too unsophisticated to appreciate the questions put to him, and on the basis that things may have been “lost in translation.” I declined to allow re-examination at large, the Applicant having filed affidavits on this application prepared by his current counsel which raised no issue about the Applicant’s level of education or sophistication, nor any concerns pertaining to translation.

[104] Although he was unable to recall whether he had receive more than one call from A.M.M. in 2014 when questioned by Crown counsel, in re-examination, he offered the new detail not referenced in his affidavit that, five to six months after A.M.M. called him in March 2014, A.M.M. called him about a settlement from N.S. and her family.

[105] He confirmed that he told his former counsel about the settlement offer, which I note was apparent from the evidence tendered at trial, but that she never met with A.M.M. I observe that the Applicant was not asked whether his former counsel communicated with A.M.M. by phone call or other means.

[106] The Applicant added that, on one occasion A.M.M. approached him at the Medina Mosque to say that he had information about the case, but that he declined to speak with A.M.M. This was despite having no recall about the calls from A.M.M. when cross-examined by Crown counsel. Moreover, no mention was made about A.M.M.’s approach at the Medina Mosque in his affidavit.

The Palmer /Kowall Criteria Applied

[107] The Applicant has not met his onus on a balance of probabilities to tender fresh evidence that meets the Palmer criteria, as refined in Kowall.

[108] The fresh evidence tendered through the affiants can be broken down into four discrete areas:

1. The alleged first offer of settlement from N.S. and her mother, put to A.M.M. to convey to A.R. in 2014;

2. The alleged admission to A.M.M. that N.S. fabricated the allegations of sexual assault, on her own, or with the assistance of G.A.;

3. The alleged second offer of settlement conveyed to A.R by A.Q. in August 2016; and

4. The alleged threat by S.S. against A.M.M. made in June 2017.

1. The First Settlement Offer

[109] I find this evidence fails all four branches of the Palmer/Kowall test. The alleged first offer was known to the Applicant in March 2014, or possibly months later in 2014, and by due diligence, he could well have conveyed all details to his former counsel, in order to interview A.M.M. and call him, if desirable, at trial. Indeed, the matter was briefly covered at trial, at which time I queried the relevance of this hearsay evidence put to N.S. in cross-examination, as being at all related to any decisive issue at trial. I addressed this line of questioning at para. 19 of my trial decision.

[110] I reject the explanation offered by the defence in written argument that, to meet with A.M.M. about the settlement offer would have been an obstruction of justice at any time. Former counsel could well have interviewed A.M.M. to investigate the potential for motive to fabricate the allegations for nefarious purposes, whatever they might have been.

[111] The evidence proffered through A.M.M. is not proof of fabrication of the offence. Proof of a conversation about settlement is not inconsistent with a demand for compensation such as could well be made in a civil action for sexual battery. Any evidence that leads to this inference would amount to a collateral fact, not material to the issue of whether the sexual assault took place.

[112] If the evidence is tendered to support an inference as to motive to concoct the allegations among N.S. and S.S. and other members of the complainant’s family, that was intended to punish A.R. for failing to offer assistance for M.S.’s wedding, there was no credible evidence put before the court to prefer this inference over the other amounting to a collateral fact. Indeed, the defence placed S.S. under subpoena to testify at the voir dire and never called her as a witness.

[113] I must also add that the evidence of A.M.M. was neither reliable, given the self-proclaimed limits of his memory due to mental illness and poor health, nor credible. It is simply implausible that he would attempt to broker a settlement for any nefarious purpose, particularly if N.S. confessed to him that she had concocted the allegations.

[114] The evidence of the first offer of a settlement conveyed by A.M.M. in 2014 to support an inference of some nefarious purpose is simply not reasonably capable of belief and could not have altered the result at trial.

2. The alleged admission of fabrication of N.S. in March 2014

[115] The Crown conceded that, if believed, the evidence of A.M.M. and A.R. establishes that the Applicant only learned of this evidence after the verdict. Furthermore, the Crown acknowledged that this evidence, if believed, would be highly relevant and would undermine the credibility of N.S. by going to the very heart of the prosecution of the matter and clearly affecting the ultimate result.

[116] This discrete area of evidence engaged the third criterion in the Palmer/Kowall test. However, I have no hesitation in finding that the evidence proffered by A.M.M. was not capable of belief, assuming that his memory could be considered reliable, and I have already found that this is not the case.

[117] I am satisfied that it is simply implausible that A.M.M. would attempt to broker a settlement at any time, knowing that the Applicant was an innocent man. I reject his evidence that he was bound by any prohibition to communicate with the Applicant, and could not make better efforts to communicate the alleged confession to him or his former counsel in some way, shape or form, even if the Applicant refused to receive his calls or to meet. I should add that, based on A.M.M.’s evidence, I would not be satisfied that he had no opportunity to do so in the brief conversations he had with the Applicant in June or July of 2014.

[118] As for A.R.’s evidence on the matter, I have no confidence in the veracity of his account of the communication by A.M.M. months ago as to N.S.’s alleged confession, given his inability to offer any details about the conversation with A.M.M. As I have noted, this was in stark contrast to his memory of A.Q.’s visit to his home to convey another offer of settlement on August 7, 2016.

[119] Finally, the Applicant’s affidavit served as no proxy for the state of awareness or knowledge of his former counsel in relation to the evidence of A.M.M.

3. The alleged second offer of August 2016

[120] The verdict was not released until November 15, 2016. The Applicant did not exercise due diligence in applying to reopen the case prior to his conviction to tender this evidence. However, a lack of due diligence alone would not preclude a reopening of the defence, if considered in the interests of justice, having regard to the other factors in Palmer/Kowall and any other relevant consideration. As the preffered remedy of the defence is a mistrial, this evidence is perhaps more germane to the question of remedy, had I had been persuaded to reopen the matter. I will address this question later in these reasons as they relate to remedy.

[121] Despite my concerns that A.Q. was not an entirely impartial witness due to his political interest in securing the Applicant’s endorsement for his election as a representative of the Pakistan Peaple’s Party of Canada, I am satisfied his credibility was not materially impeached. Nevertheless, I was not persuaded that his evidence was material or relevant to any decisive issue at trial. I find that, at its highest, his evidence only established that he spoke with S.S. about a settlement, which according to his belief, was in keeping with proof of sexual impropriety on the part of the Applicant. Whether or not S.S. was attempting to capitalize monetarily on the sexual assault of her daughter is of no moment, and is entirely collateral to the question of whether or not a sexual assault occurred.

[122] The evidence of A.Q. could not reasonably have altered the result in this matter. Indeed, it could be considered supportive of the prosecution, in that he testified it would have made no sense for him to convey a settlement offer in order to compensate for the Applicant’s wrong doing, had he been told by A.M.M. that N.S. had confessed to having fabricated the allegations. I have already found A.M.M.’s testimony was neither credible nor reliable, and the contrast between A.Q.’s evidence and A.M.M.’s evidence on this point serves only to further undermine A.M.M.’s veracity and the cogency of this application.

[123] Finally, the evidence proffered by A.Q. is not materially different from the evidence about the first offer conveyed by A.M.M. in 2014, which was tendered at trial and which did not affect the verdict. In fact, it could be seen to be weaker evidence in that there is no suggestion that N.S. even knew about this particular offer. It cannot, therefore, be received as evidence of motive to lie on the part of N.S.

4. The alleged threat by S.S. to A.M.M. in June/July 2017

[124] The Crown admitted that, if believed, the evidence of an alleged threat could not have been received at trial.

[125] This evidence engages the second criterion on the Palmer/Kowall test. However, I have no hesitation in concluding it offends the collateral facts rule, in that it relates wholly and exclusively to the credibility of non-accused witnesses, A.M.M. and S.S., who was under subpoena but not called by the defence to testify at the voir dire. It is not relevant to the credibility of N.S. nor to any decisive issue at trial.

[126] I have already made it plain that A.M.M.’s evidence was called into question, and that his credibility was undermined by the cross-examination at the voir dire.

[127] In short, this evidence was not reasonably capable of belief and could not have affected the outcome at trial.

Was the Fresh Evidence not received as a result of Trial Strategy or a Tactical Decision?

[128] At the outset of this application, the Applicant’s counsel represented to the Court that, while no question was being raised as to the competent representation of the Applicant by former counsel at trial, all efforts to secure her cooperation in the application had failed, and she was not responding to communications.

[129] However, before the evidence was concluded on the voir dire, Crown counsel informed the Court that former counsel had been in contact and was prepared to attend to testify. Her evidence was nevertheless not called by the Applicant.

[130] As such, there is no evidence that it was not a considered decision by the Applicant, on the advice of his former counsel, not to call the evidence of A.M.M. at trial, or to seek to reopen the defence to call A.Q.’s evidence prior to verdict.

[131] Although not determinative, this is an important consideration weighing against the decision to admit fresh evidence.

Remedy

[132] If I am found to be in error either in law or by misapprehension of the evidence, in dismissing this application, I would not have considered the circumstances of this case nor the manner by which I arrived at a verdict at trial such as to require a declaration of mistrial. In my opinion, had the evidence before me on this application met the legal requirements for the exercise of my discretion to reopen the case, I would have received the new evidence, permitted the prosecution to call any new evidence in reply, including the evidence of S.S., and considered it along with all of the other evidence received at trial to arrive at a verdict. So long as it served the ends of justice, I would have considered the necessity to recall the evidence of N.S., although she has already placed herself before a court on two occasions, and has been subjected to careful cross-examination in which she has been required to relive the painful recollections of her sexual assault.

Conclusion

[133] I have concluded that the interests of justice do not require the evidence tendered on this application to be admitted. This is not a case where I would exercise my discretion to reopen the trial, given the lack of due diligence; the tenuous relevance of the settlement offers; the lack of any credible body of evidence substantiating the alleged confession by N.S. to A.M.M., or any other basis on which the result at trial would have changed; and the lack of evidence on trial strategy.

[134] The application is accordingly dismissed.

Madam Justice Toscano Roccamo

Released: September 7, 2017