The accused, charged with firearm offences, brought an application mid-trial for a mistrial or, alternatively, for an order under s. 555 of the Criminal Code permitting re-election to Superior Court and converting the proceeding into a preliminary hearing.
The court rejected the mistrial request, holding that the failure of prior counsel to seek unredacted body worn camera footage did not establish an irregularity that created a real danger that trial fairness had been compromised.
However, the court found that continuing the trial in the Ontario Court of Justice would be lengthy, cumbersome, and inefficient because new disclosure motions, possible recall of numerous Crown witnesses, reconsideration of agreed facts, and further Charter litigation would be required.
In the interests of justice, and given the accused's significant liberty interests and the need to preserve fairness and the appearance of fairness, the court exercised its discretion under s. 555, declined to adjudicate, permitted re-election, and converted the matter into a preliminary hearing.
