Procedural Issues

R v Alvaro

Unreported

R. v. Alvaro

[No citation provided]
Ontario Court of Justice — Justice B. Cayton | July 19, 2001

Background

Danyelle Alvaro was charged with disobeying a stop sign under the Highway Traffic Act. At trial, after the Crown finished presenting its case, defence agent Mr. Pelaccia told the court "I am not providing a defence." The Justice of the Peace then immediately moved to Crown submissions, heard the Crown's argument, and made a finding of guilt — all without ever asking the defence if they wanted to make submissions on the evidence that had been presented.

When the judge said "Okay" to Mr. Pelaccia after convicting, Pelaccia simply responded "Certainly, Your Worship" without objecting. Alvaro appealed the conviction, represented by agent T. Brown, arguing that the trial judge failed to give the defence an opportunity to make submissions before deciding the case.

Issues

1. Whether a defendant has the right to make submissions even when they elect not to call evidence
2. Whether the failure to offer this opportunity constitutes a fatal procedural error

The Right to Make Submissions

Justice Cayton was crystal clear on this point: "A person has a God given right to make submissions." Even when the defence chooses not to call evidence, they are still entitled to argue about the evidence the Crown has presented. The proper procedure is for the court to ask defence counsel if they wish to make submissions before moving to a decision.

The Crown prosecutor, Ms. Jackson, acknowledged that "obviously that opportunity should be given" but argued that the defence should have objected when the judge said "Okay" after the conviction. Justice Cayton rejected this argument, noting that by that point "the judge has already made his decision" — it was too late for the defence to meaningfully participate.

As Justice Cayton explained, the normal flow should be: Crown calls evidence, defence decides whether to call evidence, Crown makes submissions, defence makes submissions, then the judge decides. Here, the judge jumped straight from Crown submissions to conviction, cutting the defence completely out of the process.

Key Takeaway

You have an absolute right to make submissions even if you don't call any witnesses or evidence.

If a judge tries to convict you without asking if you want to make submissions, speak up immediately — don't wait until after the conviction is announced. Justice Cayton called this violation "typically fatal" and ordered an acquittal rather than a new trial, since it wouldn't be fair to make Alvaro face the charge again due to the court's procedural error.

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R v Briggs

[2002] O.J. No. 5416

R. v. Briggs

[2002] O.J. No. 5416
Ontario Court of Justice — Justice Vaillancourt | December 9, 2002

Background

On July 28, 2002, Kevin Briggs was riding his red motorcycle southbound on Highway 48 in Markham when police spotted him moving at what appeared to be an extremely high rate of speed. The posted limit was 80 km/h, but Briggs was clocked at 130 km/h — and that was just what police could reach while chasing him without gaining any ground on the motorcycle.

The situation escalated dramatically. Police made a U-turn and gave chase with lights and sirens, but Briggs appeared to accelerate even faster. He began passing southbound vehicles by using the northbound lane, darting back into his lane at the last second to avoid head-on collisions — a maneuver he repeated several times. At one intersection, he used the right turn lane to cut off other traffic when the light turned green. Police finally caught up to him when he was forced to stop at a red light at 16th Avenue where multiple vehicles were queued.

Issues

1. Whether the court could accept a guilty plea to a provincial Highway Traffic Act offence when the accused was charged with a federal Criminal Code offence
2. Whether the dangerous driving charge should be dismissed in favor of the lesser speeding conviction

The Plea Bargain Controversy

This case reveals an important but contentious practice in Ontario courts. Briggs was charged with dangerous operation of a motor vehicle under section 249(1)(a) of the Criminal Code — a serious criminal offence that could result in a criminal record, licence suspension, and even jail time. However, his lawyer negotiated to plead not guilty to the criminal charge and guilty to speeding under section 128(1) of the Highway Traffic Act instead.

Justice Vaillancourt expressed significant reluctance about this arrangement, stating he took "a more restrictive reading" of the Criminal Code provisions that allow pleas to "any other offence." He believed this should be limited to other Criminal Code offences, not provincial legislation. However, he noted this was common practice in Newmarket and reluctantly agreed to accept the arrangement rather than force an amendment to the information, which he described as "really an art of fiction."

The result was that Briggs received a conviction for speeding 50 km/h over the limit, resulting in a fine of $487.50 plus a 20% victim surcharge, with 90 days to pay. The dangerous driving charge was dismissed entirely.

Key Takeaway

Even serious driving can sometimes be plea-bargained down to lesser provincial offences, but this practice varies significantly between courts and judges.

While this case shows that negotiated resolutions between Criminal Code charges and Highway Traffic Act offences do occur, Justice Vaillancourt's reluctance demonstrates that not all judges will accept such arrangements. Self-represented defendants should understand that plea negotiations depend heavily on Crown consent, local court practices, and individual judicial attitudes toward inter-jurisdictional plea bargains.

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R v Bruno

[1975] O.J. No. 1017

R. v. Bruno

[1975] O.J. No. 1017
Ontario Supreme Court - Court of Appeal — Kelly, MacKinnon and Lacourciere JJ.A. | October 1975

Background

Domenico Bruno was convicted of dangerous driving by Judge Graburn in July 1974 and sentenced to one year in reformatory plus a three-year driving prohibition. Two other counts of causing bodily harm by criminal negligence were withdrawn. The central issue at trial was whether Bruno was conscious at the time of the accident — if he was unconscious, he couldn't be guilty of dangerous driving.

After the accident, Bruno gave a voluntary statement to police. The Crown knew about this statement before closing their case, but deliberately chose not to introduce it. Only after Bruno testified in his own defence did the Crown call a police constable to prove portions of the statement that contradicted Bruno's testimony about being unconscious during the accident.

Issues

1. Can the Crown withhold clearly relevant evidence during their case and then introduce it in reply after the defence has testified?
2. Was this procedural error serious enough to warrant a new trial?

The Crown's Unfair Ambush Tactic

The Court of Appeal was not impressed with the Crown's strategy. They found that the portions of Bruno's statement went "to the heart of the matter" — the basic issue of consciousness that would determine guilt or innocence. The Crown tried to justify this by arguing they were only using the statement to attack Bruno's credibility, but the court saw through this. As MacKinnon J.A. noted, "It would require great mental agility on the part of the trial Judge to disassociate the words which were being quoted to the appellant as his statement from that basic issue."

The court cited the principle from Regina v. Drake: "evidence which is clearly relevant to the issues in the possession of the Crown should be advanced by the Crown as part of his case and such evidence cannot properly be admitted after the evidence for the defence by way of rebuttal... the law regards it as unfair for the Crown to lie in wait to permit the accused to trap himself." The court emphasized that this principle only applies to evidence that is clearly relevant — not evidence that is "marginally, minimally or doubtfully relevant." Bruno's statement was obviously in the first category.

Key Takeaway

The Crown cannot deliberately withhold clearly relevant evidence and then spring it on you after you testify.

If you're facing charges and gave a statement to police, the Crown should introduce it during their case if it's relevant to the central issues. If they try to hold it back and ambush you with it after you testify, that's grounds for appeal — but you need to object at trial when it happens.

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R v DiPietro

Unreported

R. v. DiPietro

District Court of Ontario
District Court of Ontario — Judge H.R. Locke, D.C.J. | January 20, 1989

Background

Gaetano DiPietro was caught driving 88 km/h in a 60 km/h zone. The arresting officer smelled alcohol on his breath, which led to a roadside breath test that registered a "fail" just before 1:06 a.m. DiPietro was then taken to the police station for breathalyzer tests at 1:55 a.m. and 2:15 a.m., both showing 100 milligrams of alcohol per 100 milliliters of blood.

The officer completed a Notice of Suspension of Driver's Licence, writing that DiPietro's 12-hour suspension was for "obtaining a reading of 50 milligrams or more on a breathalyzer (Borkenstein)." During cross-examination, when asked when he completed this document, the officer testified: "I don't know when completed. I presume it would be completed sometime after the breathalyzer (sic) test." After both sides had closed their cases and given their arguments, the Crown asked to reopen the trial to call the officer back to clarify the Notice of Suspension.

Issues

1. Whether the Provincial Judge erred in allowing the Crown to reopen the prosecution after the accused had pleaded not guilty, all Crown evidence had been presented, the accused had elected to call no evidence, and submissions had been substantially completed
2. Whether the Notice of Suspension constituted evidence to the contrary regarding the breathalyzer readings

The Reopening Decision

The District Court judge was highly critical of the Provincial Judge's decision to allow the Crown to reopen its case. Judge Locke found the lower court's reasoning "quite confusing" and emphasized that "The Crown is surely entitled to only 'one bite' and not two." The Crown counsel at trial was described as "experienced and capable" and "well aware" that the Notice of Suspension had become an exhibit, but chose not to re-examine the officer on its contents during the Crown's case.

The court held that once the accused has elected to call no evidence and argument has been given, the trial should not be reopened in these circumstances. This violates fundamental principles of trial fairness and finality.

Evidence to the Contrary

Judge Locke found that the Notice of Suspension, which referred to a reading of "50 milligrams or more" rather than the actual breathalyzer reading of 100 milligrams, was capable of being evidence to the contrary. In the absence of the actual document showing what the roadside reading was, this discrepancy between the officer's written notation and the breathalyzer results could undermine the prosecution's case.

Key Takeaway

The Crown cannot get a "do-over" to fix problems with their case after closing arguments have begun.

If you're defending a drinking and driving case, pay close attention to any documents the officer completed — discrepancies between different readings or times can create evidence to the contrary that helps your defence.

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R v Last

[2009] SCC 45

R. v. Last

[2009] S.C.J. No. 45
Supreme Court of Canada — Deschamps J. | October 15, 2009

Background

Gregory Ernest Last was charged in one indictment with counts related to two separate sexual assault incidents in London, Ontario, approximately one month apart. The first incident involved S.M., whom Last had met at a nightclub on her 19th birthday. After giving her a ride home, Last allegedly pulled out a gun, held it to her forehead, choked her, and repeatedly sexually assaulted her. The second incident involved M.A., a 32-year-old woman Last met through a mutual friend. After accompanying her to her apartment, Last allegedly struck her across the forehead with a mug, choked her until she was unconscious, and sexually assaulted her while she was naked and covered in blood.

Before trial, Last applied for severance under section 591(3) of the Criminal Code, asking that the counts related to each sexual assault be tried separately. The trial judge denied the application, finding there was a nexus in time and place between the incidents but concluding that any prejudice could be addressed through jury instructions. Last was convicted on all charges and sentenced to 22.5 years' imprisonment.

Issues

1. Did the trial judge err in dismissing the application for severance?
2. Whether the significant risk of prejudice to the accused outweighed any benefits to the administration of justice in trying the counts together.

The Severance Analysis

Section 591(3) of the Criminal Code allows a court to order that an accused be tried separately on different counts "where it is satisfied that the interests of justice so require." The Supreme Court established that courts must balance the risk of prejudice to the accused against the public interest in a single trial. Key factors include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid multiple proceedings; the use of similar fact evidence; the length of trial; and the potential prejudice regarding the right to be tried within a reasonable time.

The Court found the trial judge failed to conduct a proper balancing exercise. Although Last was likely to testify on both incidents, the risk of prejudice was nevertheless significant because of the dangers of credibility cross-pollination and prohibited propensity reasoning. The two incidents involved different complainants who didn't know each other, occurred in different locations, and raised different legal issues (consent versus identification). There was no factual nexus beyond the city and timeframe, and no similar fact evidence application was made.

Key Takeaway

When multiple charges involve separate incidents with different complainants, courts must carefully weigh whether trying them together creates unfair prejudice that outweighs judicial efficiency.

The Supreme Court emphasized that judges cannot simply rely on jury instructions to cure significant prejudice, and must genuinely balance all relevant factors rather than giving undue weight to administrative convenience. The Court set aside the convictions and ordered separate trials for the counts related to each victim.

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R v Mahaney

[2005] O.J. No. 3840

R. v. Mahaney

[2005] O.J. No. 3840
Ontario Court of Justice — L.E. Chester J. | August 25, 2005

Background

On March 11, 2005, Ryan Mahaney was charged with speeding 110 km/h in an 80 km/h zone. The arresting officer was Ontario Provincial Police Constable Hoogerdyk. When the case went to trial before Justice of the Peace Ballam, the Crown ran into a problem: the officer wasn't allowed to refer to his notes to refresh his memory while testifying.

The issue was that Constable Hoogerdyk had used a pre-printed template that he had created himself to complete his notes about the incident. The Justice of the Peace ruled that this violated proper procedure and dismissed the charge, finding the Crown hadn't proven its case beyond a reasonable doubt. The City of Kawartha Lakes appealed this dismissal.

Issues

1. Whether a police officer can use a pre-printed template he created himself to refresh his memory when testifying about a speeding offence

The Template Evidence Rule

Justice Chester established clear rules for when police officers can use notes, notebooks, or completed templates to refresh their memory at trial. The court found that such materials are not evidence themselves — they're simply memory aids to help officers recall pertinent details like times, places, and sequences of events.

The key requirements are: (1) the notes must be made at the time of the incident or shortly after; (2) there can be no changes, additions, alterations or deletions since the notes were originally made; and (3) the officer must have an independent recollection and need the notes to refresh his memory. Justice Chester found it made no difference whether the officer used his own pre-printed template or filled in official blanks, as long as no changes were made after it was attached to the ticket.

In this case, Constable Hoogerdyk had developed his template in response to complaints about his handwriting, and he filled it out at the time of writing the offence notice. Since all three conditions were met, the Justice of the Peace had erred in not allowing the officer to use his template.

Key Takeaway

Police officers can legally use self-created templates or forms to refresh their memory at trial, as long as the notes were made contemporaneously and haven't been altered.

For defendants, this means you can't automatically challenge an officer's testimony just because they're using a pre-printed form or template instead of traditional handwritten notes. The focus should be on whether the notes were made at the time and whether they've been changed since.

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R v Mitrevski

[2001] O.J. No. 2202

R. v. Mitrevski

[2001] O.J. No. 2202
Ontario Superior Court of Justice — O'Driscoll J. | May 14, 2001

Background

Sime Mitrevski was charged with careless driving under section 130 of the Highway Traffic Act after rear-ending a vehicle that was waiting to turn left on Danforth Avenue in Toronto on September 8, 2000. Before the trial, there was a meeting between the prosecutor, defence counsel, the accused, the investigating officer P.C. Stewart, and even the victim whose car was struck. Everyone agreed that Mitrevski should plead guilty to the lesser included offence of "failing to turn left to avoid collision" under section 148(5) of the HTA.

When they appeared before Justice of the Peace T. Jewitt on January 22, 2001, defence counsel entered a plea of not guilty to careless driving but guilty to the included offence, with the prosecutor's consent. However, after hearing the facts, the Justice of the Peace decided she didn't think section 148(5) applied to the situation and refused to accept the negotiated plea. She then indicated she would continue with the trial herself on the original careless driving charge.

Issues

1. Whether a Justice of the Peace who refuses to accept a negotiated guilty plea should continue to preside over the trial
2. Whether the defendant's admissions during the failed plea create a reasonable apprehension of bias

The Bias Problem

The court found that while the Justice of the Peace had the right under section 45(4) of the Provincial Offences Act to refuse the negotiated plea, she should have adjourned the matter to a different Justice of the Peace. The problem was that during the plea proceedings, she had heard Mitrevski admit to the basic facts of the collision — that he was driving eastbound on Danforth Avenue and struck a vehicle that was waiting to turn left.

Justice O'Driscoll relied on the Court of Appeal decision in Re daSilva and the Queen, which established that when a judge rejects a guilty plea, "the fact of the essential admissions already made would raise a reasonable apprehension of bias" if the same judge continued with the trial. The defendant had entered the plea "with the understanding that such a plea would be accepted and the charge of careless driving was no longer in issue." Suddenly having to face trial on the original charge before the same judge who had heard his admissions was fundamentally unfair.

Key Takeaway

If a judge refuses your negotiated guilty plea, demand that the trial be heard by a different judge.

Any admissions you make during a failed plea bargain can create bias if the same judge continues with your trial. The law protects you from having your own words used against you in this situation.

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R v Panchal

[1995] O.J. No. 3149

No summary has been written for this decision yet.

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R v Sandoval

[1998] O.J. No. 4436

R. v. Sandoval

[1998] O.J. No. 4436
Ontario Court of Justice (Provincial Division) — Hogan Prov. J. | April 21, 1998

Background

Milagros Karen Rodriguez Sandoval found herself facing criminal charges, but there was a problem with her information — the appearance notice wasn't properly confirmed on it. This might sound like paperwork, but it's actually a jurisdictional defect that can kill a prosecution. Sandoval wasn't represented by counsel when she tried to raise this objection, though she had been represented by counsel at earlier court appearances.

The Crown argued that Sandoval had somehow "attorned" to the court's jurisdiction by appearing previously with a lawyer, essentially waiving her right to object to the defective information. The defence countered that the objection was made in a timely fashion and the defect couldn't be cured.

Issues

1. Can an unrepresented accused attorn to the court's jurisdiction?
2. Was the objection to the defective information made in a timely manner?
3. Can a jurisdictional defect in an information be remedied?

The Attornment Problem

Judge Hogan made a crucial distinction that every self-represented person should understand: you cannot attorn to jurisdiction unless you actually understand what that means. The judge stated clearly that "an unrepresented accused by appearing attorns to the jurisdiction in any real way until they have had an opportunity to obtain legal advice." Simply showing up to court without a lawyer doesn't mean you're giving up important legal rights — you have to actually know those rights exist and consciously waive them.

The judge explained that there's no real attornment "until they have been actually advised by counsel." This is a protective principle — the law doesn't expect ordinary people to understand complex jurisdictional concepts without legal guidance.

Timing and Defects

The court found that Sandoval's objection was made in a timely fashion. The judge noted this was "quite close to the line" but acceptable because various practical considerations make it better to raise these objections early rather than on the trial date. The defence counsel had followed standard practice by requesting a copy of the information to check for defects, and when it didn't arrive, he checked on December 4th and discovered the problem.

Most importantly, the judge ruled that this jurisdictional defect could not be remedied. Unlike some technical errors that courts can fix, a failure to properly confirm an appearance notice on an information goes to the court's very power to hear the case.

Key Takeaway

Just showing up to court without a lawyer doesn't mean you're waiving important procedural rights.

If you discover a serious defect in your charging document, you can still object even if you've appeared in court before, as long as you raise it promptly once you become aware of the problem.

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R v Theosanamoorthy

[1997] O.J. No. 6175

No summary has been written for this decision yet.

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