CITATION: R. v. Koritar, 2026 ONSC 2860

COURT FILE NO.: CR-22-90000564-0000

DATE: 20260519

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STEPHEN WILLIAM KORITAR

Applicant

– and –

HIS MAJESTY THE KING

Respondent

Dragi Zekavica and Elina Marinosyan, for the Applicant

Venus Sayed, for the Crown

HEARD: December 18, 2025 and February 5, 2026

Pinto J.

Defence Application to Re-open Trial

1The applicant, Mr. Koritar, seeks to reopen this matter, which has been before the criminal courts since February 2021. The applicant was charged with possession of various controlled substances, including fentanyl, for the purpose of trafficking, and assault of a police officer. He has now been convicted and sentenced. Just before his sentencing, he brought an application to reopen his criminal matter on the basis of “fresh evidence” that had come to his attention in the Fall of 2025. I dismissed the application to reopen with written reasons to follow. These are those reasons.

Procedural History

2On February 1, 2021, police executed a search warrant at 2 Sonic Way, Unit 2308, Toronto, leading to the applicant’s arrest and the seizure of controlled substances. The warrant was issued on the strength of an Information to Obtain (ITO) sworn by Police Constable (PC) Acer Huang, a member of the Toronto Police Service. PC Huang relied on a source handler who received information from a confidential source (CS).

3The defence brought pre-trial section 7 and 8 Charter applications including to challenge the validity of the ITO and the search warrant. Those applications were dismissed in June 2024: R. v. Koritar, 2026 ONSC 711; R. v. Koritar, 2025 ONSC 518.

4In January 2025, I convicted the applicant following a judge-alone trial: R. v. Koritar, 2025 ONSC 432.

5The applicant then brought an entrapment application which I dismissed in December 2025, with written reasons to follow: R. v. Koritar, 2025 ONSC 2879.

6Sentencing submissions were heard on September 19, 2025 and the applicant was to be sentenced on December 18, 2025. However, on that day, the applicant sought an adjournment to reopen the trial and declare a mistrial based on information he learned in the Fall of 2025. I granted the adjournment and heard submissions on the application to reopen on February 5, 2026. On that day, I dismissed the application to reopen with written reasons to follow. I then sentenced the applicant to a prison term of 5 years prior to the application of credits: R. v. Koritar, 2026 ONSC 875.

Background

7On February 1, 2021, PC Huang prepared the ITO to enter and search the premises at 2 Sonic Way, Unit 2308 where it was believed the applicant resided. The search warrant was granted by the issuing Justice. The ITO relied upon information obtained from a CS who provided information to the police investigation. In disclosing the ITO to the accused, the Crown asserted CS privilege and effected numerous redactions to the ITO in order to protect the identity of the CS from disclosure. Ultimately, as per an oral ruling that I provided on June 3, 2024, I was satisfied that the proposed judicial summary satisfied the requirements of making the accused “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.” After the judicial summary was finalized, the parties were given an opportunity to confer as to whether, in light of the judicial summary and the redacted ITO given to the Defence, the Defence still wished to cross-examine the affiant DC Hwang.

8After much discussion at the hearing, the applicant advised that he wanted to cross-examine the affiant on only one area of the ITO: the question of why the affiant included the applicant’s charges in the ITO. As explained in my Garofoli ruling, I found that it was not necessary to order the affiant to be cross-examined because the ITO contained all the information necessary to address the issue in question. I found that the affiant located five occurrences of interest that corroborated the information provided by the CS. And the affiant also included information about the outstanding charges, the applicant’s criminal record, and the Versadex information. It was not necessary to call the affiant to be cross-examined in the circumstances.

9The argument proceeded to the question of whether the search warrant in respect of the condo could have issued under the law. The applicant raised a number of technical and what I found to be tangential concerns in criticizing the ITO. Overall, I found that while there may have been weaknesses in some aspect of corroboration, they were compensated by other factors, including the credibility of the source and the compelling nature of the information provided. Police did not have to see the applicant actually going into the 2308 unit for it to be reasonable for the issuing Justice to issue the warrant.

10The CS was credible: the source is a registered source with the TPS. The CS provided reliable information on a number of occasions. Details of previous times (more than one but less than ten) that the CS provided information to the police were before the issuing justice. Whether or not the CS had a criminal record, and the details of the record, if any, were disclosed to the issuing justice.

11The details of the source information were corroborated. Through police investigation, database checks, and physical surveillance, the police corroborated much of the information provided by the CS.

12I concluded that the ITO contained sufficient facts to establish reasonable grounds to link the applicant to Unit #2308 at 2 Sonic Way. I therefore found the warrant valid.

The Application to Reopen based on “Fresh Evidence”

13The applicant was convicted in January 2025. On October 30, 2025, as a result of media publicity concerning the conduct of certain officers in the Toronto Drug squad, applicant’s counsel wrote to Crown counsel requesting the name of the source handler in the applicant’s case. On November 17, 2025, Crown counsel replied and advised that the source handler was PC Rui Esteves. PC Esteves has been a surveillance and searching officer involved in the applicant’s case but this was the first time that the applicant learned that PC Esteves had also been the source handler who acted as an intermediary between the CS and the ITO affiant PC Hwang.

14Applicant’s counsel learned that PC Esteves had been the subject of negative judicial commentary by Ducharme J. in R. v. James (unpublished decision, June 18, 2021). Ducharme J. had found that PC Esteves and other officers had provided dishonest and misleading testimony in court in respect of the police search and arrest of the accused who was charged with drug offences. Ducharme J.’s conviction of the accused in that case was subsequently overturned, see R. v. James, 2025 ONCA 213, but the appeal court did not disagree with the trial judge’s concerns about PC Esteves’ credibility.

15On the application to reopen, the applicant argues that:

(a) The identity of the source handler was not disclosed to the defence, contrary to the Crown’s disclosure obligations.

(b) PC Hwang relied substantially on information provided through the source handler who, it now turns out, had a negative credibility assessment in a previous judicial matter.

(c) Had the defence been aware of the source handler’s identity and prior negative credibility assessment, it would have sought leave to cross-examine the source handler and to challenge the validity of the search warrant on a materially different evidentiary record.

(d) The failure to disclose the information concerning PC Esteves as source handler has deprived the applicant from making full answer and defence, rendering the Charter proceedings and trial unfair, resulting in a miscarriage of justice.

(e) The fresh evidence should be admitted and there is at least a reasonable possibility that the result at trial would have been different, including the possibility that the search warrant would have been quashed and the evidence excluded.

16In an affidavit in support of its application to reopen, a law clerk working for the applicant’s office deposed that, had the applicant been aware that PC Esteves was the source handler, he would have sought leave to cross-examine him in the Garofoli proceeding and asked him several questions, particularly:

(a) How could the CS state that the applicant resided at Unit 2308 when the CS had only dealt with the applicant on the street in downtown Toronto?

(b) How could the CS state that the applicant was selling drugs from his residence when the CS had never been inside Unit 2308?

(c) Who had instructed the CS to initiate a telephone call to the applicant on January 31, 2021 and request to purchase 28 grams of crystal methamphetamine from the applicant?

17For ease of reference, I shall call these three questions the “fresh evidence cross-examination questions.”

18The Crown’s response to the application is that it is without merit and should be dismissed. The “fresh evidence” does not satisfy any branch of the well-known criteria in Palmer v. The Queen, 1979 8. The evidence could have been sought and led had the applicant exercised due diligence, it does not bear on a decisive issue, and it would not have affected the result. The Crown submits that the application is an attempt to reverse a tactical decision made at trial and should be dismissed.

Discussion

19I find that the application to reopen should be summarily dismissed as two of the four Palmer criteria have not been met.

20In R. v. Kowall, 1996 411, the Court of Appeal set out that the “fresh evidence” test to be applied post-conviction is a more rigorous test:

The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 1993 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 8 (SCC), 50 C.C.C. (2d) 193, at page 205 (S.C.C.) (see: R. v. Mysko (1980), 1980 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;

(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.

21The Crown submits that the first criteria has not been met because the Crown had advised the defence of the negative judicial assessment in the James matter concerning PC Esteves in 2021. Of course, at the time of the Garofoli application and then at trial, the Crown had not yet identified PC Esteves as the source handler. PC Esteves was only identified as a testifying officer who had played a role in the surveillance, search, and processing of exhibits seized in this matter. Ultimately, PC Esteves was not cross-examined concerning the negative credibility assessment in James as a sub-affiant in the Garofoli application, or as a witness at trial.

22Whether or not it was a tactical decision by the defence to not cross-examine the then unidentified source handler, the first criteria has to do with whether, by due diligence, the applicant could have chosen to do so. Given that this is a criminal case, I am prepared to give the applicant the benefit of the doubt on this point. The evidence suggests that it was only in November 2025 that the applicant understood, based on correspondence from the Crown, that PC Esteves was the source handler providing information to PC Hwang, the affiant of the ITO. I find that the applicant has met the first criteria of the fresh evidence test.

23It is with respect to the second criteria that this application fails. The second criteria asks, does the fresh evidence bear upon a decisive or potentially decisive issue in the trial? While it is now known that PC Esteves was the source handler, there is no basis in the applicant’s materials to suggest that judicial criticism of the officer’s conduct in an unrelated case, could or would have compromised his role, or the information he passed on to the affiant of the ITO in support of the condo search warrant.

24In my view, the applicant’s three “fresh evidence cross-examination questions” demonstrate that the proposed fresh evidence would not bear upon a decisive or potentially decisive issue in the trial. The first two questions, namely, “how could the CS state that the applicant resided at Unit 2308 when the CS had only dealt with the applicant on the street in downtown Toronto” and “how could the CS state that the applicant was selling drugs from his residence when the CS had never been inside Unit 2308?” have more to do with the credibility and reliability of the CS, not the source handler PC Esteves. The third question, “who had instructed the CS to initiate a telephone call to the applicant on January 31, 2021 and request to purchase 28 grams of crystal methamphetamine from the applicant?” is a repackaging of the applicant’s theory that, in fact, the CS was a police agent, and not a true confidential informant. I already ruled against the applicant on the “CS as police agent” issue. In any event, I find it very difficult to see how the negative credibility assessment of PC Esteves made in the James matter, can bear on his role as a source handler in the within case.

25In my reasons for decision on the Garofoli application, I held that, overall, while there may have been weaknesses in some aspect of corroboration, they were compensated by other factors, including the credibility of the source and the compelling nature of the information provided. I specifically held that the police did not have to see the applicant actually going into unit 2308 for it to be reasonable for the issuing Justice to issue the warrant. It appears that the applicant is seeking to re-open the hearing to relitigate the same point.

26I held, in my Garofoli ruling, that the CS was credible: the source was a registered source with the TPS. The CS provided reliable information on a number of occasions. Details of previous times (more than one but less than ten) that the CS provided information to the police were before the issuing Justice. Whether or not the CS had a criminal record, and the details of the record, if any, were disclosed to the issuing justice. The details of the source information were corroborated. Through police investigation, database checks, and physical surveillance, the police corroborated much of the information provided by the CS. I concluded that the ITO contained sufficient facts to establish reasonable grounds to link the applicant to Unit #2308 at 2 Sonic Way. I therefore found the warrant valid.

27The point is that while PC Esteves was the source handler, which is a role that must be conducted with honesty and integrity, the purported credibility concern about him would not make much of a difference to the applicant’s stated concerns about the sufficiency of the ITO. When asked directly about how PC Esteves’s role may have tainted the ITO and search warrant process, applicant’s counsel suggested that the source handler could have fabricated evidence. This answer strikes me as a response that can be made against any witness at any time, but this concern is not grounded in the actual evidence available on the record before me.

28I find that the proposed fresh evidence, being the negative judicial credibility assessment of PC Esteves in a wholly different matter, does not bear on a decisive or potentially decisive issue at trial, so the second criteria of the fresh evidence application fails.

29I find that the third criteria, “the evidence must be credible in the sense that it is reasonably capable of belief” is met. The fresh evidence arises from a negative judicial assessment of PC Esteves by Ducharme J. in the James matter and is therefore credible.

30Moving on to the fourth criteria, asking “whether the fresh evidence if believed could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result”, I find that is not the case.

31I agree with the Crown’s submission that there is only a narrow window for cross-examination of affiants, and even less room to seek to cross-examine sub-affiants. This would be particularly so for source handlers given the very strong concern by courts that cross-examining a source handler may expose a CS.

32The court in R. v Bouchard, 2011 ONSC 4994, at para. 18, stated:

[18] As well, when confidential informants are involved, utmost care must be exercised to ensure that their identities are not unwittingly revealed through providing information about them or their stories which appears innocuous but which in fact is significant to the accused. In the criminal justice system, the informant’s handlers have the best information as to what information may put the informers, or their family members, at risk (R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281).

33Sub-affiants are subject to the same requirements for leave to cross-examine as are affiants:

… in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focused on the question to be determined on a Garofoli review — whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. (Pires; Lising, para. 40)

34I fail to see how asking questions of the source handler about his credibility problems in a totally unrelated case could advance the applicant’s argument about the insufficiency or weakness of the ITO in the present case. It would also run contrary to the collateral fact rule and lead to a mini-trial about PC Esteves’ involvement in the James case in the present trial.

35It is also generally the rule that, while an accused is permitted to put allegations of prior discreditable conduct to a Crown witness, a witness cannot be cross-examined on the fact that his or her evidence has been disbelieved by a judge in another proceeding: R. v. Ghorvei, 1999 19941. Also see, R. v. Baksh, 2022 ONCA 481.

36The court in Baksh succinctly explained the appropriate scope of cross-examination:

37In Ghorvei, at para. 29, this court made clear that a witness can be cross‑examined on the underlying misconduct that may have given rise to a finding that a witness’s evidence was not credible. However, at para. 31, this court limited the appropriate scope of that cross-examination:

In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case.

37Ghorvei should not be taken to stand for the proposition that a witness can never be cross-examined on adverse credibility findings from other judicial proceedings. In R. v. Holloway, Harris J. explained that Ghorvei does not necessarily preclude cross-examination on adverse credibility findings if these findings are closely intertwined with findings of prior discreditable conduct. Here, the applicant did not argue that PC Esteves’ role as a source handler in the applicant’s case was in any way similar to or intertwined with his police conduct in the James matter.

38Ultimately, I find that, even if the proposed fresh evidence of PC Esteves’ negative credibility findings from James were accepted, taken with the other evidence adduced at trial, I cannot see how its admission would be expected to have affected the result. The law about previous negative credibility findings arising from judicial pronouncements in unrelated cases is not “once a liar, always a liar.” The applicant’s submission for reopening trial came perilously close to that argument although couched in the submission that one may never know what answer PC Esteves may have given in his capacity as source handler.

Conclusion

39The application to introduce fresh evidence fails, consequently the application to reopen this matter is dismissed.

Pinto J.

Released: May 19, 2026