CITATION: R. v. Stronach #6, 2026 ONSC 4304
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
FRANK STRONACH
Applicant
Jelena Vlacic and Julia Bellehumeur, for the Respondent/Crown
Leora Shemesh, Rameez Sewani, and Megan Shemesh, for the Applicant/Defendant
HEARD: July 17, 2026
NOTICE OF RESTRICTION ON PUBLICATION
Pursuant to s. 486.4(1) of the Criminal Code, information that may identify any complainant may not be published, broadcasted, or transmitted in any manner.
molloy j.:
REASONS FOR DECISION
(POST-CONVICTION MOTIONS on COUNT 6)
A. INTRODUCTION
[1] Frank Stronach was charged with multiple sexual offences relating to seven complainants. I found him guilty on two counts, one of which was the historical offence of indecent assault against the complainant V.T. between 1977 and 1978 (Count 6), and the other a sexual assault of the complainant A.S. in 1983 or 1984 (Count 12). I released detailed written reasons for those convictions on June 19, 2026.[1]
[2] Subsequently, the defence brought a motion seeking a mistrial with respect to both convictions and, in the alternative leave to reopen the trial to permit further cross-examination of both complainants. In relation to V.T., the defence also sought clarification with respect to my reasons for conviction.
[3] At the conclusion of the argument, I dismissed the defence motion with respect to Count 6 (the charge involving V.T.), but granted the mistrial with respect to the offence involving the complainant A.S., indicating that written reasons would follow for both decisions. My reasons for ordering a mistrial on Count 12 involving the complainant A.S, are issued separately.[2] My reasons for dismissing the defence motion on the conviction relating to V.T. are set out below. The case will proceed to the sentencing hearing in respect of Count 6 on September 17, 2026.
B. BACKGROUND FACTS
[4] I am providing a shortened version of the background facts to set the context for this motion. These are abbreviated and are not a replacement for my full reasons, which can be found in my decision convicting Mr. Stronach on Count 6 (R. v. Stronach #4).
[5] In 1977, V.T. was a legal secretary who went to Rooney’s in the evenings after work several times a week. She often saw Mr. Stronach there and had a casual, friendly relationship with him. Occasionally she would have dinner with him at the restaurant connected to Rooney’s. After one such dinner, he invited her to come with him to his apartment, which was nearby, and she agreed.
[6] At the apartment, Mr. Stronach left the room briefly. V.T. simply waited, standing beside an upholstered armchair in the living room. When he returned, Mr. Stronach came up behind V.T., pushed her forward face first over the arm of the chair, flipped her skirt up past her hips, and proceeded to press his groin into her crotch. She could feel his erect penis. She was wearing panties, a garter belt, and nylon stockings. After some brief period of time, she stood up and left the apartment. Mr. Stronach said and did nothing.
[7] In her evidence, V.T. described Mr. Stronach’s conduct as “attempting to rape” her and trying to “penetrate” her vagina. However, she conceded that he was not able to actually penetrate her vagina because of her panties. Further, she acknowledged that she did not see Mr. Stronach drop his pants or remove his penis from his pants before pressing up against her vagina. It was therefore possible that his penis was inside his pants the entire time.
[8] Mr. Stronach had originally been charged with two counts in relation to this incident with V.T.: attempted rape under Count 5; and indecent assault under Count 6. Following V.T.’s evidence the Crown withdrew the attempted rape count. In R. v. Stronach #4, I wrote:
172Count 5 was withdrawn by the Crown. L.T. testified that she did not know whether Mr. Stronach was fully clothed. She also said that she considered it would have been impossible for him to penetrate her vagina through her panties. An intent to achieve vaginal penetration is an essential element of the offence of attempted rape. Given the evidence with respect to the state of dress of both the complainant and the accused it would not be possible to be satisfied beyond a reasonable doubt that Mr. Stronach had the specific intent to commit rape, but simply failed to achieve that objective. The Crown acted properly in conceding that a conviction could not properly be entered on this charge.
[9] With respect to Count 6, I ruled that I believed V.T.’s evidence that Mr. Stronach, without warning, flipped her face first over a chair, lifted her skirt to her waist, and proceeded to grind his pelvis into her vaginal area. I found this constituted indecent assault. My reasons for convicting Mr. Stronach on Count 6 are set out in paragraphs 174-176 of my reasons in R. v. Stronach #4, as follows:
174First, the Crown must establish beyond a reasonable doubt that there was an assault, which is the deliberate application of force to a person without that person’s consent. That element is clearly made out. Mr. Stronach came up to V.T. from behind, pushed her over without saying a word, pulled up her skirt, and made contact with her body forcibly with his own. The level of force is not required to be violent. The degree of force used by Mr. Stronach was sufficient to constitute assault.
175In my view, it is clear on the evidence that there was no consent to this contact by V.T. – it was simply forced upon her before she had any idea it was going to happen. V.T. was repulsed by this act and stood up and left the apartment. She was not subjectively consenting to this act. Further, there can be nothing she said or did to give any impression to the contrary. V.T. was cross-examined about her saying to the police that, “Maybe he thought it was consensual, but like it wasn’t.” She responded that she does not know what was going through his mind, which is obviously true. However, that does not mean that there is any evidence to sustain a finding that he might have believed there was consent. When meeting with the police, V.T. repeatedly said she did not consider herself to be a victim, but that she could speak to Mr. Stronach’s “propensity to act in an ungentlemanly manner.” When cross-examined on this, V.T. proclaimed that she considered herself a survivor, not a victim. As for whether this conduct goes beyond “ungentlemanly behaviour” and is properly described as criminal conduct, that is a question of law for me to decide. It does not matter that V.T. cannot read Mr. Stronach’s mind, or how she would label his conduct, or that she does not want to label herself as a victim. I have determined what happened and it is for me to determine whether this was a criminal assault. I find there was a deliberate application of force without V.T.’s consent. That satisfies the first branch of the test.
176Next, the Crown must prove beyond a reasonable doubt that the assault is morally offensive or offending against notions of modesty and decency. Clearly, Mr. Stronach’s act was sexual in nature. The question is whether it was an “indecent” assault. The definition of “indecency” is one that courts struggled with over the years. There may be situations in which an assault that is sexual in nature is not, by definition, an indecent assault. However, this case does not pose a challenge in that regard. V.T. was 25 years old. Mr. Stronach was a man of considerable wealth and experience and was 20 years her senior. While V.T. was simply looking out the window of his apartment, he flipped her over a chair and pushed her skirt up. That could be indecent assault by itself. But standing over her and grinding his pelvis into her vaginal area is, quite simply, gross and disgusting conduct. I am satisfied beyond a reasonable doubt that Mr. Stronach’s conduct in committing this assault was indecent and morally repugnant within the meaning of what was then s. 149 of the Criminal Code.
C. THE ISSUES RAISED ON THIS APPLICATION
[10] The defence application seeks a mistrial, or alternatively the right to recall and further cross-examine V.T., with respect to this conviction for indecent assault. This is based on two issues: (1) that I “misapprehended” V.T.’s evidence with respect to the nature of the touching involved in this incident and should provide “clarification” of my reasons; and (2) that I failed to find that a prior inconsistent statement by V.T. constituted a “deliberate lie”.
D. MISAPPREHENSION OF THE EVIDENCE AND CLARIFICATION
[11] In my decision, I described Mr. Stronach’s actions in various ways, including: “grinding into her vaginal area from behind;” “she could feel the hard penis pushing on her panties in her vaginal area;” “grind[ing] his crotch into her vaginal area over her panties;” “[his] groin being pushed into her vaginal area;” “grinding his groin into her vaginal area from behind;” and “grinding his pelvis into her vaginal area.”[3]
[12] In her written submissions, defence counsel submitted that the record shows that V.T. did not refer to “grinding, pressing, pushing, or any type of simulated ‘dry humping’.” First of all, the expression “dry humping” was never used by V.T., nor was it ever used by me. It is correct that V.T. did not use the same verbs as I did, but I did not purport to be quoting her. V.T. used words like attempting to penetrate her or attempting to rape her. I explain in my reasons why I came to the conclusions I did with respect to the nature of the contact. Those are my factual findings as to the nature of the contact. It is not for me to say whether I misapprehended the facts. I stated my reasons, and those reasons stand.
[13] I was asked to clarify whether this was “incidental” touching, so that defence counsel could better prepare for the sentencing hearing. I found Mr. Stronach guilty of indecent assault. This cannot be “incidental touching.” I have described the conduct, I have said it was intentional and non-consensual and constituted an assault. The words “gross and disgusting” are mine. That is my description of Mr. Stronach’s conduct, and the basis for my determination that this was an “indecent” assault. This is a determination for me to make, regardless of the actual words used by the complainant to characterize that conduct. I do not consider it appropriate to amplify my reasons beyond what I have already said.
[14] I have reviewed the relevant law in my companion decision dealing with the application as it relates to Count 12 (involving the complainant A.S.) and will not repeat it here.[4] There is no basis for a mistrial on this ground and no basis to recall V.T., although it would appear from later submissions that this relief is not specifically sought on this issue. Rather, the later defence submission in this regard is apparently based on a “need” for clarification. I see no basis to amplify the reasons already provided. The relative degree of severity of the conduct constituting the offence can always be a subject of submissions at the sentencing stage.
E. PRIOR INCONSISTENT STATEMENT
The Prior Inconsistent Statement Relied upon by the Defence
[15] On September 13, 2024, V.T. attended a preparation meeting with the two Crown prosecutors in this case and the officer in charge of the investigation (Officer Misev). In that meeting, V.T. was advised by the Crowns that she should not contact the other complainants and not seek information about them or their stories. V.T. responded to that instruction by telling them that she had read an article in the Toronto Star about another woman’s complaint against Mr. Stronach. Officer Misev took handwritten notes of that meeting, which were disclosed to the defence. A typed version of those notes was also provided at the request of the defence prior to trial. It is common ground between the parties that this article would have been based on the Toronto Star interview of L.S. and was published in July 2024.
V.T.’s Testimony at Trial
[16] V.T. testified at trial on February 18, 2026. Her examination in chief extended 26 pages of transcript. V.T. confirmed that she first approached the police to make a complaint about Mr. Stronach in June 2024 in response to a Toronto Star article about there being sexual assault charges and that police were encouraging other victims to come forward. She testified that there were no particulars about these alleged assaults in the article. It is clear from the evidence that V.T. provided her statement to the police on June 13, 2024, which was before the Toronto Star article about the L.S. allegations.
[17] The Crown asked V.T. in her examination in chief if she had seen, read, or heard anything on TV about any individual accounts of other complainants since her statement to the police on June 13, 2024. V.T. responded that she had not, noting that she had been instructed not to and that she had abided by that. She then added that if there was a headline in the paper, it would be difficult to avoid and that she had seen a headline a few weeks earlier about the trial being delayed, but had not actually read the article. The Crown made no specific reference to V.T. having read the Toronto Star article in July 2024, as revealed by her to the Crown and police in September 2024.
[18] Cross-examination by defence counsel was thorough, covering 96 pages of the transcript. V.T. was cross-examined for three pages about the news article she read before she provided her statement to the police.[5] Defence counsel did not ask her any questions about having read the article in the Toronto Star in July 2024, nor about any other articles she had read since her original police statement. This issue was also not addressed in the brief re-examination by the Crown.
Remedial Steps Taken by the Defence at Trial
[19] Ms. Shemesh advised the court in her oral submissions that when she was cross-examining V.T. on February 18, 2026, she did not realize that V.T. had told the Crown and police in September 2024 that she had read the article in the Toronto Star about L.S.’s allegation of being sexually assaulted by Mr. Stronach. Ms. Shemesh acknowledged that this information was contained in the disclosure provided by the Crown, but that she had missed it. Ms. Shemesh explained that she had prepared for the cross-examination of V.T. using the hand-written notes of Officer Misev, which are largely illegible but appeared to indicate that L.S. did not read the article. It looks to me in the hand-written notes that the word “not” has been crossed out, but I agree the notes are very difficult to decipher. However, knowing how illegible the notes were, the defence had requested a typed version which the Crown provided prior to trial. The information about V.T. having read the article is quite clear in the typed notes. There is a small error in the typed version of the notes with respect to the time L.S. was interviewed. Four complainants were interviewed that same day, and in the typed notes the same interview time is ascribed to two different complainants, although the handwritten notes are accurate in that regard. Ms. Shemesh advised me that she did not realize her oversight until days later when she was preparing for the upcoming cross-examination of Officer Misev on various points.
[20] I recognize that no affidavit was before me on this point, but in the circumstances, I was prepared to accept Ms. Shemesh’s explanation as to how this oversight occurred. I can understand how this detail about V.T. reading the July 2024 Toronto Star article could easily have been overlooked.
[21] If Ms. Shemesh had drawn this to my attention immediately and sought to reopen her cross-examination of V.T. before I had made a decision in this matter, I would have most likely allowed it. It is never palatable to permit prejudice to an accused’s defence to sit unremedied due to a minor (or even major) oversight by his counsel. It is always preferable to correct such minor errors before judgment is rendered. The test for reopening a trial to admit new evidence is less onerous at that stage than after the trial judge has already decided the case.[6] However, Ms. Shemesh did not request that relief at the time. Instead, she contacted the Crown and explained the situation. She suggested to the Crown that this could be remedied by an Agreed Statement of Fact (“ASF”).
[22] In her email to the Crown sent on Saturday, March 7, 2026, Ms. Shemesh wrote (in reference to V.T.):
I have read the evidence very carefully.
I am asking that the crown provide an ASF that [V.T.] was not honest or forthright in her evidence that she had not seen or read the narrative of any other complainant.
On September 13, 2024 – during a prep meeting with the crown and Officer Misev – [V.T.] disclosed to you that she had indeed, read an article in the Toronto Star about another person’s experience with Mr. Stronach.
(page 28 – in chief – she denies reading any other account)
I am happy to take Officer Misev to his notes to confirm – but I think in light of this having occurred in a prep meeting for which you were both present – an ASF should be provided – if you are both so inclined.
[23] Crown counsel, Ms. Vlacic responded as follows the next day, Sunday, March 8:
No need to call DC Misev on this point – we will agree to the prior documented notation and that she did in fact disclose this.
[24] An ASF was drafted, confirmed by defence counsel, and filed on consent as Exhibit 13 at trial on March 11, 2026. Paragraph 1 of that ASF states:
On September 13, 2024, during a meeting with police officers and Crown counsel [V.T.] advised that she had read an article in the Toronto Star about another complainant’s account in this case (L.S.).
[25] In addition, Officer Misev provided the same evidence when he testified that same day and was cross-examined by defence counsel about that statement.
[26] Defence counsel did not seek to recall V.T. as a witness for the purpose of confronting her with this prior inconsistent statement. The normal procedure for admitting evidence of a witness’ inconsistent out of court statement requires putting the statement first to the witness and providing her with an opportunity to explain. However, given that this was an ASF between two experienced counsel I raised no objection.
[27] In closing submissions, defence counsel argued that V.T. outright lied in her evidence about not having read any other complainant’s narrative. Crown counsel took the position that V.T. may simply have not remembered having read the article and that was not a perjury, nor an issue that would undermine her credibility.
My Reasons on This Issue After the Trial
[28] I dealt with this issue as follows in my reasons:
169Finally, I have given careful consideration to what I consider to be a contradiction in V.T.’s evidence. V.T. first contacted the police about her allegations against Mr. Stronach in June 2024 and was formally interviewed on video on June 13, 2024. At that time, she told police that she had come forward after seeing a news release about Mr. Stronach’s arrest. In her evidence at trial she reiterated that she had contacted the police after seeing a news release in which the Peel Regional Police were asking members of the public to come forward with any relevant information they had. She understood that they were investigating four cases of sexual assault and she thought perhaps her information about the apartment on Balliol could provide some corroboration, to show he had a little hideaway. When asked if she had seen or heard anything in the press about this case since being interviewed by the police in June 2024, she said she had not, explaining that she had been instructed not to do so. She said the only thing she had seen was a headline on the front page about the trial being delayed, which was two weeks before the trial started before me. V.T. was specifically asked by the Crown whether she had ever heard or read any details of anybody else’s individual accounts, and she denied that she had. V.T. was later cross-examined on this issue and continued to insist that she had never read a newspaper article that provided any information about specific allegations made by another complainant. It is an Agreed Fact between counsel that this is inaccurate. In her meeting with the two Crowns and police in September 2024, V.T. told them that she had read the Toronto Star article which featured the story of L.S., including her specific allegations against him. This admission was made by the Crown after V.T.’s evidence was already complete.
170Although this is certainly a contradiction, it does not undermine my faith in V.T.’s honesty as a witness at trial. When she gave her police statement on June 13, 2024, the Toronto Star article had not yet been published. The article was published in July 2024. When V.T. next met with the police officers and the prosecuting Crowns, she was told to avoid all media coverage of this case. She told them she had already read the article about L.S.’s allegations, which I consider to be an indication of honesty. I accept her evidence that since then, she has not read anything about this case. I do not think she deliberately lied about having read about the particulars of L.S.’s allegations. It may be that she has simply forgotten that she read about it two years ago, or that she understood the questions to be related to the period before she went to the police with her own story. If I thought she had deliberately lied, I would consider that to be a difficult problem for her overall credibility. Being confused about what she read and when and how much detail she had been aware of is a different matter. In my view, any information V.T. gleaned from the Toronto Star article has had no impact on her evidence at trial. She did not read it until after giving her statement to the police. Her evidence at trial largely follows what she told the police in June 2024. Further the details of L.S.’s story are quite different from L.S.’s narrative about what happened to her. L.S. said she was groped and digitally penetrated by Mr. Stronach while on the dance floor at Rooney’s. V.T. testified that she saw Mr. Stronach frequently at Rooney’s and he struck her as being kind, friendly, and gentlemanly. L.S. described Mr. Stronach tearing a hole in her pantyhose. V.T. was quite clear that she was wearing nylon stockings, not pantyhose. L.S. described forced non-consensual intercourse at Mr. Stronach’s Harbourfront condo. V.T. described a bizarre act in which Mr. Stronach flipped her over and was grinding his groin into her vaginal area from behind.
171Although V.T. read that article, I find it had no impact on the evidence she provided in court and I do not find that, in all the circumstances, her credibility is undermined.[7]
Defence Position on This Application
[29] On this application, Ms. Shemesh took the position in argument (although not in her written material filed in advance) that Crown counsel acted unethically by not pointing out to her, before she closed her cross-examination, that V.T. had made a prior statement to them that was inconsistent with an aspect of her testimony at trial. No authority was cited for this proposition.
[30] Ms. Shemesh also pointed to her initial email to Crown counsel in which she stated that she wanted an ASF that V.T. “was not honest or forthright in her evidence that she had not seen or read the narrative of any other complainant” (emphasis added). She complained that the ASF filed did not stipulate that V.T. had been dishonest in her evidence. She took the position that the prior inconsistent statement should have been taken as impeaching V.T. as a witness, and that she could not have contemplated I would find this not to be a deliberate lie.
Analysis: Ethical Responsibility of the Crown
[31] The duty of the Crown is to put the facts before the court in an impartial manner. The Crown is not an advocate for a complainant.[8] I have no information as to whether Crown counsel in this case realized, in advance of being informed by Ms. Shemesh, that V.T. had previously told them she had read the Toronto Star article about L.S.’s allegations and later testified that she had not. Had counsel realized this while V.T. was testifying, perhaps they could have sought to refresh her memory by referring her to Officer Misev’s notes. But, in my view, that is a standard of perfection. Failure to do so, knowing that defence counsel had those notes, is not unethical conduct.
[32] Further, if a witness gives evidence which the Crown knows is wrong or is contradicted by other evidence, there is an ethical obligation to disclose this contradictory evidence to the defence. However, if the Crown knows that this information has already been provided to the defence, there is no duty to remind them of this fact. In this case, Ms. Shemesh contends that when she failed to cross-examine V.T. on the prior inconsistent statement, the Crown had an ethical responsibility to tell her what was in the disclosure given to her previously. I disagree. It is not the responsibility of the Crown to ensure that the defence has read and absorbed the disclosure material. It is also not the responsibility of the Crown to advise defence counsel after a cross-examination that there are other areas of cross-examination the defence might profitably explore and point them to where they could find it in the disclosure. This goes far beyond the ethical responsibility of Crown counsel. There was a situation in this trial where a witness claimed not to have read the transcripts of her testimony at the preliminary hearing when, to the knowledge of the Crown but not the defence, she had actually read them the day before. In accordance with their ethical responsibilities, the Crown advised defence counsel of this. Likewise, the Crown ethically withdrew some charges they knew could not be proven, and conceded in other cases (based on information that arose from the cross-examination) that it would not be safe to convict on the evidence before the Court. If I accept the defence argument on this application, I would be imposing on the Crown, in all cases henceforth, an ethical responsibility to supervise the cross-examination of every Crown witness to ensure that no stone has been left unturned by defence counsel and to then point out to the defence things in the disclosure material that they may have overlooked. There is no such duty recognized in the existing case law to date, nor should there be.
Analysis: The Prior Inconsistent Statement is Not Necessarily a Lie
[33] As I have already noted, if, prior to receiving my reasons convicting Mr. Stronach, the defence had asked to recall V.T. to cross-examine her on the prior inconsistent statement, I would have been receptive to that request. However, she did not. The defence notice of application states that based on the Crown’s email (accepting the defence request for an ASF) “the defence was prepared to rely on the purported agreement that there had been an obvious inconsistency in the complainant’s evidence – and consequently, an obvious impeachment that did not require viva voce evidence.”[9] There is nothing to suggest any such agreement by the Crown as to the implications of the inconsistency. The Crown merely agreed to the defence request to resolve this by setting out the prior inconsistent statement in an ASF.
[34] The ASF merely sets out the inconsistency. It says nothing about whether V.T. deliberately lied about this issue. Ms. Shemesh knew that the ASF was silent on this point, but nevertheless signed off on it, and consented to it being filed as an exhibit without any request to recall the witness. It would be highly unusual for an ASF to include a credibility finding about a witness deliberately lying, which is typically the sole domain of the trier of fact. Had this ASF included such a statement, particularly without an admission by the witness, I would have raised it with counsel as being irregular.
[35] The defence written reply material on this application states, “Mr. Stronach was never provided an opportunity to place before the Court evidence to suggest that the witness had ‘deliberately lied’.”[10] That is simply not accurate. The defence had an opportunity to do this when initially cross-examining the witness, but did not do so due to an understandable oversight by defence counsel. However, upon realizing that error, the defence never once sought to recall the witness to attempt to put evidence of a deliberate lie before the court, despite a clear opportunity to do so. It was only upon learning I had not reached the determination the defence was hoping for, that the defence now seeks to recall the witness. In my view, this choice was a deliberate strategy by defence counsel, who cannot have realistically expected this witness to admit she had deliberately lied, but would more likely have provided an alternative explanation that I might then have accepted.
[36] The defence’s application for a mistrial stated “[t]he defence could simply not have predicted that the court would find that the complainant was confused and or, had a lack of memory on this fact – particularly since neither party had questioned her.”[11] Frankly, I cannot understand how the defence could make such an assertion, nor that they could have been of that view prior to receiving my reasons. In argument at the end of the trial, defence counsel took the position that V.T. had deliberately lied about not having read the article about L.S.’s allegations (and about many other things). The Crown acknowledged there were inconsistencies in V.T.’s testimony, including about having read this article about L.S. However, the Crown submitted that this particular inconsistency should not be taken as perjury, nor was it a point that undermined overall credibility. If the defence believed this to be a breach of some agreement between the Crown and defence, that would have been the time to raise it. The defence chose to say nothing. Further, regardless of whether the Crown was in breach of some unwritten understanding not contained in the ASF, after the final submissions of counsel at the end of the trial, it had to have been apparent to the defence that there were two opposing arguments before me: the defence position that this inconsistency was fatal to the complainant’s credibility; and the Crown position that it was not. It therefore should have been apparent to defence counsel that both options were available to me. While defence counsel may have been confident that her view of it would prevail, it cannot be said that the alternative was not possible.
[37] I am also at a loss to understand that defence counsel would be of the view that, in the absence of evidence from the witness directly addressing any explanation for the inconsistency, the only finding I could make was that she deliberately lied to deceive the court. Surely, in the absence of a specific explanation, it is open to me to look at the whole of the evidence and determine the extent to which this particular inconsistency undermined the overall credibility of the complainant. It would have been open to me to find that she lied; and it was also open to me to determine that, as there were other plausible explanations for the discrepancy, I was not satisfied that she had lied. That is particularly so when there was no logical reason for her to tell a lie that could be so easily refuted and which had no direct relevance to her narrative of what happened to her.
[38] In their reply submissions on this application, the defence seeks to support the importance of V.T.’s prior inconsistent statement by linking it to another alleged lie about whether V.T. was wearing pantyhose as opposed to stockings during this assault by Mr. Stronach. The reply submission states:
It is the defence position that the only reason why [V.T.] changed her evidence from having worn nylons that evening in 1977 to instead wearing stockings was because she had read allegations of [L.S.] and considered the potential peculiarity of having worn nylons at the time of this incident. As such, she altered her initial statement and instead, chose to testify that she had been wearing stockings to permit a more reasonable interpretation of her narrative.[12]
[39] This position makes no sense at all. L.S. testified that she was wearing pantyhose and that Mr. Stronach tore them open and digitally penetrated her on the dance floor at Rooney’s. V.T. never once said that she was wearing pantyhose. The term “pantyhose” was suggested by one of the police officers during her police statement, but it is not something she ever adopted. She said she wore stockings. She always said she wore stockings. Stockings can come in many different textures and weights. However, they are always items that cover the feet and legs. They do not include panties. Stockings can be held up in various ways, including a garter belt, which is what V.T. said she was wearing. One type of material that stockings can be made of is nylon. Sometimes when stockings are made of nylon, they are referred to as “nylons” as a short form for “nylon stockings” as opposed to “woolen stockings” or “silk stockings”. Saying you were wearing stockings is not inconsistent with saying you were wearing nylons. They mean the same thing. V.T. never changed her evidence on this point. While, in my view, it is simply common knowledge that this is the meaning of these words, I consulted online dictionaries to confirm my understanding.
[40] The Meriam-Webster online dictionary provides the following definitions:
Stockings - a usually knit close-fitting covering for the foot and leg[13]
Nylons - plural: stockings made of nylon[14]
Pantyhose - a usually sheer close-fitting one-piece undergarment that covers the body from the waist down and has a panty-style top- usually plural in construction[15]
[41] Similarly, the Collins Dictionary defines those terms as follows:
Stockings – countable noun: stockings are items of women’s clothing which fit closely over the feet and legs. Stockings are usually made of nylon or silk and are held in place by suspenders.[16]
Nylons – plural noun: stockings made of nylon or other synthetic material.[17]
Pantyhose – in British English (US, Canadian, New Zealand), plural noun: a one-piece clinging garment covering the body from the waist to the feet, worn by women in place of stockings, also called: pantihose or (esp Brit) tights; - in American English, noun used with a plural verb: a one-piece, skintight garment worn by women, combining panties and stockings.[18]
[42] I ruled previously that V.T. did not change her testimony after reading the article about L.S.’s allegations. She gave her statement to the police in June 2024 prior to reading the Toronto Star article in July, and in September 2024 she voluntarily told the Crown and police that she had read that article. Her evidence at trial was not different in any material way from her statement to the police as to the essential elements of the assault. The defence argument advanced now about there being a conflict between “nylons” and “stockings” is a distinction without a difference, much like “spaghetti” and “pasta”. It is based on a flawed premise and adds nothing to the credibility analysis.
[43] The law is clear that the mere existence of a prior inconsistent statement is not a basis for rejecting the whole of a witness’ evidence. The trier of fact is first required to consider the nature of the inconsistency and whether it is an important issue in the case. It is also necessary to consider any explanation given for the inconsistency. In this case there was no explanation for the inconsistency. The issue of what V.T. learned about the allegations of L.S. is an immaterial issue given that L.S.’s evidence at trial was unaffected by it. The fact of the inconsistency can be used to assess the overall credibility of a complainant. However, even where an inconsistency is a lie, as opposed to a mistake, that does not necessarily preclude making a finding that the witness testified truthfully about other things. In this case, the information received from the article about L.S. was immaterial to my credibility findings because of the timing of when that information was received, and its lack of connection to anything V.T. said at trial. I considered it most logical that there was a memory failure or some confusion on V.T.’s part as to this issue. There would be no reason for V.T. to deliberately lie about what she read: (a) because it was after she gave her statement to the police which is largely the same as her evidence at trial; and (b) because she provided this information to the Crown and police already and there would be no point in deliberately lying about it. I did say in my reasons that if there was a basis for believing it to be a deliberate lie, this would be a “serious problem” for V.T.’s overall credibility. That is because a deliberate lie under oath is always a serious matter. It is simply a basic legal principle. It was not a finding that my decision would have been different if I had concluded that V.T. deliberately lied.
[44] I will not review all of the case law on this issue as I have set it out in my companion decision. However, I will deal with several key points.
[45] I agree with the Crown’s submission that the test for re-opening this case fails to meet the required factors under the Palmer test.[19] First, the evidence of the prior inconsistent statement is not “new”. It was known to the defence prior to the end of the trial. The defence chose not to recall V.T. at that point and instead sought an ASF on the issue. The defence made submissions about how I should treat the prior inconsistent statement, and the Crown made contrary submissions. Still the defence chose not to ask for the witness to be recalled. The first condition is not met. Second, the inconsistent statement has little relevance due to its subject matter. The second condition is not met. Third, the prior inconsistent statement is reasonably capable of belief. It is entirely possible, indeed likely, that when V.T. told the Crown and police that she read the article in July, she was telling them the truth. There would be no reason whatsoever for her to lie about it. The third condition is satisfied. Fourth, there is nothing about this evidence that could be expected to have affected the result at trial. Just as there was no reason to lie to the Crown and police that she had read the article, there was no reason for her to lie under oath at trial and say that she had not read the article if she in fact understood the question and remembered reading it. The fourth condition is not met.
[46] The defence relies on the decisions of Trotter J. (as he then was) in R. v. Drysdale[20] and Goldstein J. in R. v. Duro.[21] There is no issue about the legal principles applied in both cases. Both counsel rely on those principles and I accept the law cited in both decisions as applicable to the issue before me. However, both cases are clearly distinguishable on their facts and in how the legal principles involved applied to those facts.
[47] In Drysdale, Trotter J. made adverse findings of credibility about the accused with respect to his evidence that he had been wearing a distinctive hoodie. This was a significant factor in his ultimate conclusion that the accused was guilty of the offence charged. At sentencing, there was an issue of how Mr. Drysdale had been treated after his arrest, and videos were presented from his time at the police station. When watching one of those videos, Trotter J. noted that the accused was in fact wearing the distinctive hoodie he had described. Defence counsel had disclosure of the videos but had not noticed his client’s clothing. This evidence was discovered only after the accused had been convicted, and it was the trial judge who noticed it. Trotter J. concluded that he had been wrong in finding the accused’s evidence to be untruthful on this point, and that this infected his entire reasoning process. Accordingly, he declared a mistrial. Nothing like that happened in this case. Counsel in the case before me knew about the inconsistent statement before the case was closed, agreed that it could be dealt with by way of an ASF, and made submissions about it before I delivered a decision.
[48] In Duro, Goldstein J. was unaware of an agreement between counsel about providing the court with an edited version of the accused’s criminal record, pursuant to the principles in Corbett. The accused knew about this agreement. One of the convictions that was edited was that he was convicted of committing an offence on behalf of a criminal street gang known as the Young Buck Killers (“YBK”). When the accused testified, he was asked if he was familiar with the YBK, and he said he knew them to be a music group. He denied knowing this was a criminal gang, likely because he was confused about what position to take given the agreement between the Crown and defence about limiting the evidence of his criminal record, which was connected to the YBK. However, he had to concede later in his cross-examination that he had been convicted of committing an offence on behalf of the YBK. Goldstein J. took the accused’s initial denial of knowing the nature of the YBK into account in assessing his credibility. However, Goldstein J. knew nothing about the agreement between counsel and how it might have affected the accused’s testimony. After he had convicted Mr. Duro, affidavit evidence was filed setting out the facts surrounding the Corbett agreement, and Goldstein J. recognized that confusion about what the accused was supposed to say about this gang may have caused this conflict in his testimony. Having based his credibility finding on this factor, Goldstein J. held that it would not be appropriate for him to reassess credibility based on the new evidence and declared a mistrial. Again, that is nothing like this case. The “new” evidence was not known to Goldstein J, until after he had made his credibility findings and convicted the accused. In the case before me, everything was known before final argument and the prior inconsistent statement was placed before me, on consent, as an ASF.
[49] There is one issue that arose in both Duro and Drysdale that is applicable to this case. In Drysdale, Trotter J. held:
The courts have been clear in holding that an application to re-open (just like an application to adduce fresh evidence on appeal) cannot be used as an opportunity to reverse failed tactical decisions made at trial: see R. v. Kowall, supra, at p. 494. I do not believe that this is the case here. I am unable to conclude that the failure to request the DVD and adduce its contents at trial was a tactical decision.[22]
[50] Similarly, Goldstein J. held in Duro:
Once the evidence has been accepted, the trial judge must determine whether the application to re-open is merely an attempt to reverse a tactical decision made by trial counsel. As long as the tactical decision was a competent one and made from a range of reasonable choices, an accused person must ordinarily live with the tactical decisions of counsel. Once a trial judge has found that the test for re-opening has been met, he or she must then determine whether to declare a mistrial: Kowall, supra, at para. 32. Post-conviction, a mistrial should only be granted in the clearest of cases: R. v. Arabia, 2008 ONCA 565 at para. 52. To do otherwise would do great harm to the principle of finality. Furthermore, it would otherwise be too easy for an accused person to simply file a new affidavit and say “wait, I didn’t know I was supposed to tell the trial judge about this other thing”. It would also be too easy for an accused person to obtain a mistrial based on a tactical misstep.[23]
[51] Both trial judges in these cases relied on the decision of the Court of Appeal for Ontario in R. v. Kowall.[24] In that case, the trial judge convicted the accused of fraud. Prior to sentencing, the accused retained new counsel who brought an application before the trial judge to reopen the case based on the failure of prior defence counsel to call two relevant witnesses (Tina Scrimshaw and Anne McCaw). The Court in Kowall set out the law as follows:
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.[25]
[52] The Court held that the “chronology of events is important in dealing with the admission of fresh evidence.”[26] In that case, the trial began on October 20, 1993 and proceeded intermittently after that date. The accused did not testify. Defence counsel made his closing submissions to the trial judge on January 7 and 13, 1994 and the Crown made submissions on February 21, 1994. In between those dates, defence counsel located Ms. Scrimshaw. The Court noted that although some efforts to locate Ms. Scrimshaw were made earlier, they were not diligent, which was “consistent with a trial strategy to rely upon the evidence of Mr. Heidinger”[27] (a key defence witness). The Court then held:
When the appellant finally made contact with Ms. Scrimshaw on January 22, 1994, the case was not over. Although Mr. Mark [defence counsel at trial] had made his submissions, Crown counsel had not made her submissions and of course the trial judge had not made her finding of guilt. This was the time to apply to re-open the defence case. There would have been little prejudice to the Crown at this time and little impact on the orderly and expeditious conduct of the trial. To this point the trial had been proceeding intermittently in any event. That course was not followed for tactical reasons that seemed sufficient at the time.[28]
[Emphasis added.]
[53] With respect to Ms. McCaw, the Court noted that her evidence was suspect for various reasons and also that the accused had spoken to Ms. McCaw in 1989 but had “made no effort to ascertain whether she had any relevant evidence to give, obviously because he was satisfied with the tactical decision to proceed with the testimony of Mr. Heidinger.”[29]
[54] In the result, the Court of Appeal in Klowall upheld the decision of the trial judge refusing to reopen the trial to admit the new evidence.
[55] As was the case in Klowall, the chronology of events in this case is crucial in determining whether the verdict should be set aside and new evidence admitted (in the form of a further cross-examination of V.T.). In this case, although defence counsel did not realize there had been a prior inconsistent statement while V.T. was under cross-examination, she did know about it shortly thereafter and before the evidence in the trial concluded. The defence made a tactical decision to deal with it by an ASF and followed that with forceful submissions that I should treat this as a deliberate lie that undermined the complainant’s credibility. The other option open to the defence at the time was to seek to recall V.T. and cross-examine her on the point. This carried with it the risk that V.T. would provide a plausible explanation for her failure to acknowledge at trial that she had read that article in July 2024. Both would have been reasonable options. Defence counsel did not change that strategy after hearing the Crown’s submissions that the prior inconsistent statement should be given no weight. She never sought to recall the witness in the hopes that she could establish through cross-examination that the witness had lied deliberately. She relied instead on her belief that she could persuade me as to the importance of this evidence and to conclude that V.T.’s evidence as a whole was incapable of supporting a conviction. That strategy never changed until I released my reasons finding that I believed V.T., and convicting Mr. Stronach of indecent assault. As the Court stated in Klowall, “A trial is not some kind of preliminary inquiry allowing the parties to recast their case depending upon the reasons for judgment.”[30]
[56] Ms. Shemesh is an experienced trial lawyer who conducted a thorough and skillful defence in this case, including detailed and skillful cross-examinations of all the complainants. The option she chose (relying on an ASF with no opportunity for the complainant to explain away the inconsistency) was a reasonable one and made by competent counsel. In my view, this was a tactical decision and the defence must live with the consequences. For what it is worth, in my view it is unlikely the result would be any different if the defence had chosen to recall V.T. and given her an opportunity to explain.
F. CONCLUSION
[57] The applicant has failed to meet the test required to reopen this matter following my conviction of Mr. Stronach under Count 6. Further, I see no basis for providing any clarification of the reasons I already released. For the reasons stated above, the defence application is dismissed in its entirety. This case will proceed to a sentencing hearing before me on September 17, 2026.
MOLLOY J.
Released: August 7, 2026
CITATION: R. v. Stronach #6, 2026 ONSC 4304
COURT FILE NO.: CR-25-00000284-0000
DATE: 20260807
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
- and -
FRANK STRONACH
Applicant/Defendant
REASONS FOR JUDGMENT
Molloy J.
Released: August 7, 2026
1R. v. Stronach #4, 2026 ONSC 3030, at paras.152 – 177.
2R. v. Stronach #5, 2026 ONSC 4303.
3R. v. Stronach #4, at paras. 157, 158, 164, 166, 170, and 176.
4R. v. Stronach #5, at paras. 18-21.
5Transcript at trial, February 18, 2026, at pp. 33-35.
6R v. Kowall, 1996 CanLII 411 (ON CA), 108 CCC (3d) 481, at p. 493.
7Stronach # 4, at paras. 169 -171.
8Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] SCR 16, at pp. 23-24; R. v. D.B., 1993 CanLII 6803 (NB CA), 136 NBR (2d) 166, at p. 4.
9Defence Application for Mistrial, at para. 32.
10Defence Reply Submissions on Mistrial Application, at para. 35.
11Defence Application for Mistrial, at para. 36.
12Defence Reply Submissions on Mistrial Application, at para. 27.
[13]Merriam-Webster, sub verdo “stockings” (8 August 2026), online:
https://www.merriam-webster.com/dictionary/stockings
14Merriam-Webster, sub verdo “nylons” (8 August 2026), online:
https://www.merriam-webster.com/dictionary/nylons
15Merriam-Webster, sub verdo “pantyhose” (8 August 2026), online:
https://www.merriam-webster.com/dictionary/pantyhose
[16]HarperCollins, sub verdo “stocking” (8 August 2026), online: https://www.collinsdictionary.com/dictionary/english/stocking
17HarperCollins, sub verdo “nylons” (8 August 2026), online: https://www.collinsdictionary.com/dictionary/english/nylons
18HarperCollins, sub verdo “pantyhose” (8 August 2026), online: https://www.collinsdictionary.com/dictionary/english/pantyhose
19Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759.
20R. v. Drysdale, 2011 ONSC 5451, 275 CCC (3d) 219.
21R. v. Duro, 2018 ONSC 285, 2018 ONSC 285 .
24Kowall
25Ibid at pp. 493-494.
26Ibid at p. 491.
27Ibid at p. 494.
28Ibid at p. 494.
29Ibid at p. 496.
30Ibid at p. 495.