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Joseph A. Neuberger, Michael P. Bury, and Diana Davison, Neuberger & Partners LLP, Criminal Lawyers Toronto
The Ontario Superior Court of Justice recently addressed a difficult question in R. v. Wasif, 2026 ONSC 4064: what remedy, if any, is appropriate where a complainant improperly communicates with third parties while testifying under cross-examination? The decision, released by Justice Sunil S. Mathai on July 10, 2026, provides a measured application of the governing principles on abuse of process and offers timely guidance on the risks associated with remote and closed-circuit testimony.
01 • BACKGROUND
The accused, Musab Wasif, faced numerous charges arising from incidents alleged to have occurred in 2021, when the complainant was fourteen years of age. The charges included assault causing bodily harm, sexual assault, sexual interference, invitation to sexual touching, assault with a weapon, and uttering threats. In accordance with an earlier ruling, the complainant testified by way of closed-circuit television with the assistance of a support dog, a dog handler, and a worker from the Victim Witness Assistance Program (“VWAP”).
The trial proceeded over an extended period. During a resumed day of cross-examination, the dog handler — seated a short distance from the complainant — observed the complainant using her mobile telephone and noted what appeared to be a face displayed on the screen. The handler attempted to alert the VWAP worker discreetly. At the ensuing break, the worker questioned the complainant, who denied having used the device. That denial was untrue, and the conduct resumed when court reconvened. The complainant ultimately acknowledged using the cell phone only at the conclusion of the day and disclosed the following morning that she had been in video contact with her boyfriend.
02 • THE EXTRACTION REPORT
Police seized the device and prepared an extraction report, which was disclosed to the defence. The report established that the complainant had conducted lengthy video calls, by way of the “FaceTime” application, with a contact identified as “My Hubby” throughout much of her evidence and had exchanged text messages with several individuals while testifying. A number of those messages concerned the proceedings as they unfolded, including expressions of frustration with the questioning, encouragement to remain composed, and suggestions that she retain new counsel and contact Legal Aid Ontario. The boyfriend also forwarded artificial-intelligence-generated search results concerning perjury.
On the basis of this record, the defence applied for a stay of proceedings and, in the alternative, for a declaration of mistrial.
03 • THE GOVERNING FRAMEWORK
An application for a stay founded on abuse of process is directed at state conduct, not at the conduct of a private witness. The defence accordingly characterized the relevant state conduct as the VWAP worker’s failure to report the dog handler’s observations in a timely manner. The Court assumed, without deciding, that the VWAP worker’s conduct constituted state conduct, noting that VWAP operates under the auspices of the Ministry of the Attorney General.
The Court applied the well-established framework articulated in R. v. Babos, 2014 SCC 16, and reaffirmed in R. v. Brunelle, 2024 SCC 3. A stay is available only in the “clearest of cases,” where three conditions are satisfied: first, there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated, or aggravated through the conduct of the trial or its outcome; second, there must be no alternative remedy capable of redressing the prejudice; and third, where uncertainty remains, the court must balance the interest in denouncing the misconduct against society’s interest in a determination on the merits. The defence invoked both the “main” category of abuse of process, concerned with trial fairness, and the “residual” category, concerned with the integrity of the justice system.
04 • ANALYSIS
Justice Mathai declined to find an abuse of process under the residual category. Although he characterized the VWAP worker’s delay in reporting as a serious lapse in judgment, he found it to be an honest mistake rather than a deliberate or malicious act. The Court observed that the justice system is administered by individuals, that mistakes are inevitable, and that the system is not so rigid that it must dissociate itself from every innocent error. The lapse, being isolated and unintentional, did not offend societal notions of fair play and decency.
The Court accepted that the complainant’s conduct affected the appearance of a fair trial. A witness under cross-examination is not permitted to communicate with others regarding her evidence, and the complainant had been cautioned to that effect on more than one occasion. However, the Court held that the resulting unfairness would not be manifested, perpetuated, or aggravated through the conduct of the trial or its outcome, for several reasons.
First, the Court distinguished the authorities relied upon by the defence, including R. v. Attayee, 2022 ONCJ 315, and R. v. Latimer, 2003 CanLII 49376. In those cases, the content of the improper communications was either unknown to the court or gave rise to a risk that a future witness’s evidence had been tainted. Here, by contrast, the communications had been extracted and disclosed, and each of the individuals with whom the complainant communicated was a non-witness.
Second, the Court found that the messages did not reflect any attempt to tailor or coach the complainant’s evidence — a concession made by defence counsel in oral argument.
Third, and most significantly, the Court identified an adequate alternative remedy: cross-examination. With the benefit of the extraction report, defence counsel would be able to correlate the timing of the calls and messages against the record of the testimony and challenge the complainant’s credibility accordingly. As the trier of fact, the Court would assess her evidence in light of that material.
Finally, the Court addressed the prospective risk by ordering that the complainant surrender all electronic devices to the VWAP worker before continuing her testimony, and directed that the decision be shared with VWAP supervisors for training purposes.
The Court likewise declined to declare a mistrial, reiterating that such a declaration is a remedy of last resort available only where no lesser measure can redress the harm. Given the seriousness of the charges, a new trial would be inevitable, and the same cross-examination would occur upon any retrial. A mistrial would therefore fail to address the prejudice while occasioning considerable delay and expense.
05 • SIGNIFICANCE
Wasif reaffirms the demanding threshold that governs applications for a stay of proceedings and confirms that full disclosure, coupled with the opportunity for effective cross-examination, will frequently constitute a complete remedy for prejudice that appears substantial at first instance. The decision is also notable for its observations on remote testimony. As Justice Mathai recognized, the increasing use of closed-circuit and remote testimony carries a corresponding potential for abuse; the appropriate response is not to abandon accommodations upon which vulnerable witnesses depend, but to exercise greater vigilance in administering them.
READ THE FULL DECISION HERE: R. v. Wasif, 2026 ONSC 4064
This commentary is a general summary of a public decision and does not constitute legal advice. Readers with specific legal concerns should seek advice from qualified counsel.
