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The Ontario Court of Appeal dismissed an appeal from firearms convictions, holding the search warrant challenge failed because the ITO and video evidence were not mischaracterized.
The court granted the Crown’s summary dismissal in part, striking a speculative challenge to the existence or status of informants, but let the disclosure request proceed.
Because subsequent related proceedings resulted in concessions and stays demonstrating that the accused could not make full answer and defence due to withheld ITO material, and because that material constitutes fresh evidence affecting the integrity of the criminal process, the appeal must be allowed; the conviction is set aside, a new trial ordered and a stay entered on that new trial.
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The appeal was dismissed because the Court agreed with the trial judge that a last-minute offer of earlier trial dates does not convert resulting delay into defence delay and that the case was not sufficiently complex (a Garofoli application and an 11-week schedule did not meet the threshold) to invoke the Jordan exceptional circumstances exception, thereby justifying the stay under s.11(b).
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Majority: The net delay (after a three‑month COVID deduction) exceeded the 18‑month Jordan ceiling (18 months and 4 days) and the Crown failed to discharge its burden to justify the excess under the particularly complex case exception; the application judge’s factual assessment of complexity and decision to stay proceedings is free of legal error and entitled to deference, so the Crown’s appeal is dismissed.
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The Court dismissed the appeal: the trial judge did not err in his pragmatic handling of NSP claims under O'Connor/Garofoli given party consent and preserved options to proceed to Federal Court; the Garofoli step‑five review was correctly applied and entitled to deference; refusal to sever was a reasonable exercise of discretion and did not produce injustice; conspiracy instructions (including Carter steps and repeated cautions) were legally adequate and properly put appellant's feigned‑agreement defence; the isolated out‑of‑court compliment to an undercover agent did not give rise to a reaso…
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Conviction appeal dismissed because, although the trial judge described the dismissal as summary and did not apply Haevischer, she in substance decided the motion to re-open on the full evidentiary record the defence sought and the outcome would have been the same; sentence appeal dismissed because any error in exceeding a Crown position or misapprehending one prior sentence did not materially affect the fit aggregate sentence given the appellant's high-level commercial trafficking, multiple drugs and a loaded firearm, extensive record, and proper application of totality and sentencing princi…
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The court held no separate leave was needed for a Garofoli application and allowed the accused to proceed, finding the proposed challenge was not manifestly frivolous.
The trial judge correctly applied the Debot criteria and cautiously assessed the informant's credibility, found the omission of sentencing consideration in the ITO was inadvertent and not so grossly negligent or abusive as to subvert the pre‑authorization process under Paryniuk, and the intercepted communication (or the undercover officer's refreshed testimony) was admissible and sufficient to support convictions; appeal dismissed.
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The court upheld the reviewing judge's finding that the confidential informant was credible and that the information was compelling and corroborated; such factual and credibility findings are entitled to appellate deference absent error of law, misapprehension of evidence, or failure to consider relevant evidence, and the Information to Obtain must be assessed as a whole rather than by isolating Debot factors.
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