R. v. Andriano, 2025 ONCJ 644

ONTARIO COURT OF JUSTICE

CITATION: R. v. Andriano, 2025 ONCJ 644

DATE: December 8, 2025

City of Toronto

Court File Numbers:

4860 999 23 23100321-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

JACQUES ANDRIANO

Before Justice of the Peace R. Shawyer

Heard on November 14, 2025, and in writing.

Reasons for Judgment released on December 8, 2025

Bendick, C ……………………………………………………. counsel for the Prosecution

Rosso, D counsel for the Defendant

JUSTICE OF THE PEACE SHAWYER:

Introduction

1As this Court wrote in R v. Andriano, 2025 ONCJ 431 the Ontario Provincial Offences Act, R.S.O. 1990, c. P.33 (hereinafter “POA”) was designed to provide a fair, efficient, and convenient method of dealing offences that come before Provincial Offences Courts in Ontario[i]. Therefore, it should follow that disclosure, the evidence the prosecution relies on to prosecute defendants under the POA, should be simple and brief[ii] However that is not always necessarily the case.

2The Supreme Court of Canada’s (hereinafter the SCC”) decision in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 (hereinafter “Stinchcombe”) governs the disclosure regime in criminal law cases in Canada. Since POA offences are quasi-criminal[iii] in nature Stinchcombe also governs disclosure in POA Courts.

Since POA offences are quasi-criminal in nature the question becomes how strictly to apply Stinchcombe in POA matters. In other words, does the nature and intensity of disclosure obligations differ between criminal cases and POA cases. This was a question that was before the Ontario Court of Appeal in York (Regional Municipality) v. McGuigan, 2018 ONCA 1062 (hereinafter “McGuigan”), which the ONCA declined to address[iv]. Therefore, since the ONCA declined to answer of whether the nature and intensity of disclosure obligations differ between criminal cases and POA cases it is left to lower Courts, such as this one, to answer the question.

Background

3On August 20, 2025, in its reasons for decision, the Court outlined the facts in the case at bar, as best as the Court understood them. For the purposes of context, the Court will again outline the facts of the case at bar.

4In an affidavit that was filed with the Court in support of their 11(b) Charter Application, the defendant stated that they purchased the subject property, 346 Dundas Street East in the City of Toronto (hereinafter “346 Dundas”), on December 1, 2004.

5On or about July 7, 2014, a building inspection was carried out by the City of Toronto (hereinafter the “City”) at 346 Dundas. After that inspection the defendant was found to be in contravention of Section 8, Subsection (1) of the Building Code Act, S.O. 1992, c.23, as amended (hereinafter “Building Code Act”). Therefore, on July 9, 2014, the defendant was charged with being in contravention of Section 8(1) of the Building Code Act.

6On July 13, 2015, the City sent the defendant a letter entitled “Notice of Court Action” in relation to the July 9, 2014, charges. The City gave the defendant until February 3, 2015, to discuss this matter with a Manager of Inspections to see if legal action could be avoided.

7On September 6, 2019, the City sent the defendant another letter entitled “Notice of Court Action” in relation to the July 9, 2014, charges. The City again gave the defendant an opportunity to discuss this matter with a Manager of Inspections to see if legal action could be avoided. This time the City gave the defendant until September 20, 2019.

8On November 23, 2021, the City laid an information before the Court. That information charged the defendant with failing to comply with an order dated July 9, 2014, made by an inspector pursuant to Section 12, subsection 2 of the Building Code Act. However, that the information was withdrawn in Court on May 16, 2022.

9On March 21, 2022, and April 4, 2022, the City ordered the defendant to again comply with the Building Code Act. The City ordered the defendant to do so because it alleged that the defendant had violated the Building Code Act by converting a garage located at 346 Dundas into a habitable space without a permit, amongst other alleged violations.

10On July 18, 2022, a Senior Building Inspector for the City of Toronto issued an Order to Comply (hereinafter the “Order”) to the defendant. The Order directed the defendant before the Court to obtain a building permit for or remove three unauthorized constructions at 346 Dundas. The three unauthorized constructions identified by the Senior Building Inspector on July 18, 2022, were as follows:

1. Wooden balcony structures.

2. Two 3^rd floor additions.

3. The replacement of a garage door with a wall.

11On March 24, 2023, the City laid a new information before the Court. This information charged the defendant with:

1. Count 1: On February 9, 2023, at 346 Dundas Street East in the City of Toronto committing the offence of constructing or causing the construction of a building without a permit being issued by the Chief Building Officer, contrary to section 36(1) of the Building Code Act; and

2. Count 2: On February 9, 2023, at 346 Dundas Street East in the City of Toronto committing the offence of failing to comply with an order dated July 18, 2022, made by a City of Toronto Building Inspector pursuant to section 12, subsection 2 of the Building Code Act contrary to section 36(1)(b) of the Building Code Act.

12On October 21, 2024, count one on the March 24, 2023, information, was withdrawn. That left the remaining count, count 2, on the March 24, 2023, information before the Court as November 14, 2025.

Procedural Background – Disclosure Motion

13The argument of the defendant’s disclosure proceeded thusly:

1. The defendant’s matter, after oral argument of the defendant’s 11(b) of the Charter Rights and Freedoms (hereinafter the “Charter”)[v] Application on July 30, 2025, was adjourned to September 26, 2025, in case the defendant’s 11b Application was denied.

2. On August 20, 2025, the Court issued reasons for decision denying the defendant’s request for a stay of proceedings pursuant to section 11(b) of the Canadian Charter on the basis that the matter, on a net basis, had taken more than 18 months to reach a conclusion.

3. On September 18, 2025, the parties agreed to adjourn the defendant’s matter from September 26, 2025, to November 14, 2025, because of the unavailability of the Court on September 26, 2025.

4. Between September 18, 2025, and October 7, 2025, the Court was advised that the defendant’s position was that they intended to use the scheduled Court date on November 14, 2025, to argue a motion for disclosure.

5. On October 7, 2025, the Court sent out an email to counsel advising that the defendant’s motion for disclosure should be heard in writing, which counsel for the City agreed to. However, counsel for the defendant did not agree, based on instructions from the defendant the Court learned on November 14, 2025, to have their disclosure motion proceed in writing. Therefore, the defendant’s matter returned to Court on November 14, 2025, with both counsel present but not the defendant due to ongoing medical issues, for oral argument of the defendant’s disclosure motion.

6. On November 14, 2025, counsel for the defendant proceeded to begin arguing their client’s motion for disclosure. However, counsel for the defendant was unable to complete oral argument of the defendant’s motion on November 14, 2025 because the Court did not have (1) a chart setting out the disclosure the defendant was seeking, whether the disclosure the defendant was seeking was first or third party disclosure, and the relevance of the disclosure the defendant was seeking, and (2) a factum/statement of law from the defendant explaining to the Court the law governing disclosure in Provincial Offence Act (hereinafter “POA”) matters in Ontario.

14Before Court adjourned for the day on November 14, 2025, the parties agreed to two things

1. provide the chart and factum/statement of law that the Court had originally requested on October 7, 2025, via email, and again requested from counsel on November 14, 2025; and

2. a timeline for serving and filing the materials that the Court requested.

The Law and Analysis

15In the headnote to the SCC decision in Stinchcombe the disclosure scheme as outlined in Stinchcombe was explained as follows:

[t]he Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. The obligation to disclose is subject to a discretion with respect to the withholding of information and to the timing and manner of disclosure. Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information. The Crown's discretion is reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence. The absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure. This privilege is reviewable, however, on the ground that it is not a reasonable limit on the right to make full answer and defence in a particular case.[vi]

16In Stinchcombe, the ramifications of a lack of proper in criminal cases was explained as follows:

...there is the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. This common law right has acquired new vigor by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice. ... The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.[vii]

[17] Recognizing that the possible deprivation of an accused’s s. 7 Charter rights due to a lack of proper disclosure is highest when an accused is charged with an indictable offence the SCC went on, in Stinchcombe, to address the consequences of a lack of proper disclosure on an accused s. 7 rights when an accused is charged with a summary conviction offence[viii].

The general principles referred to herein arise in the context of indictable offences. While it may be argued that the duty of disclosure extends to all offences, many of the factors which I have canvassed may not apply at all or may apply with less impact in summary conviction offences. Moreover, the content of the right to make full answer and defence entrenched in s. 7 of the Charter may be of a more limited nature. A decision as to the extent to which the general principles of disclosure extend to summary conviction offences should be left to a case in which the issue arises in such proceedings. In view of the number and variety of statutes which create such offences, consideration would have to be given as to where to draw the line. Pending a decision on that issue, the voluntary disclosure which has been taking place through the co-operation of Crown counsel will no doubt continue. Continuation and extension of this practice may eliminate the necessity for a decision on the issue by this Court.[ix]

18Following the release of Stinchcombe the Attorney General of Ontario convened an advisory panel on Charge Screening, Disclosure, and Resolution Discussions chaired by G. Arthur Martin. At the conclusion of the panel’s work the panel released a report that has become colloquially known as the “Martin Report”[x]. At page 186 of the Martin Report the panel wrote:

“[i]n summary conviction and Provincial Offences Act prosecutions, proper disclosure as suggested by Sopinka J. in Stinchcombe, [ (1991), 1991 CanLII 45 (SCC), 68 C.C.C. (3d) 1 (S.C.C.)] no doubt will vary with the nature of the statute defining the offence, and the circumstances of the prosecution. Accordingly, the detailed recommendations with respect to disclosure that follow may have varying degrees of application and/or importance. In most summary conviction prosecutions and prosecutions under the Provincial Offences Act, the disclosure will be simple and brief. On the other hand, certain matters, for example, some prosecutions under...” [and then it gives examples in Environmental Protection legislation,] “...may be highly complex, and may involve serious allegations with grave consequences. In such cases, full disclosure may be more lengthy and complex, and its significance may be heightened.”

19Since the release of the Martin Report two decisions have been issued in Ontario that deal with the disclosure scheme when a defendant is charged pursuant to the POA. The first decision was Durham (Regional Municipality) v. Driscoll-Rogers, 2008 ONCJ 581 (hereinafter “Durham”) and the second decision was York (Regional Municipality) v. McGuigan, 2018 ONCA 1062 (hereinafter “McGuigan”).

20It is axiomatic, since POA matters are quasi-criminal in nature that a defendant in a POA matter has the right to make full answer and defence. If it is not axiomatic then Part IV (Trial and Sentencing) of the POA makes it explicitly clear that the defendant has this right:

Trial on plea of not guilty

46 (1) If the defendant pleads not guilty, the court shall hold the trial. 2009, c. 33, Sched. 4, s. 1 (39).

Right to defend

(2) The defendant is entitled to make full answer and defence. R.S.O. 1990, c. P.33, s. 46 (2).

Right to examine witnesses

(3) The prosecutor or defendant, as the case may be, may examine and cross-examine witnesses. R.S.O. 1990, c. P.33, s. 46 (3).

21In Durham the Court found in its ruling on a dispute between the defendant and the prosecution over disclosure in a case about a charge of speeding under Part I of the POA that when:

1. applying the principles found in the Martin Report at page 186,

2. considering s. 2 of the POA[xi], and

3. reviewing the “plethora of case law that finds the intention of the Provincial Offences Act is to establish a speedy, efficient and convenient method of dealing with offences under Acts of the legislature and under Regulations or By-laws made under the authority of an Act of the legislature”[xii]

disclosure in POA matters can be simple and brief. The Court in Durham grounded its reasoning that keeping disclosure in POA matters simple and brief where possible preserves a defendant’s right to defend themselves against POA charges while avoiding POA Courts becoming bogged down in the complexities that can arise in criminal proceedings.

22In 2018, in what is now the leading authority, the ONCA provided guidance to litigants on the issue of disclosure in POA matters. In McGuigan the ONCA said that “[t]he first principle governing the manner of disclosure is that it be meaningful, in the sense that it be adequate to make full answer and defence.”[xiii]

23Addressing the Court’s reliance on the Martin Report in Durham to ground its finding that disclosure in POA matters can be less comprehensive, the ONCA stated that it did not:

read the Martin Report the same way it was read in Durham. Durham interpreted the Martin Report’s reference to “simple and brief” disclosure as saying that disclosure can be less comprehensive in POA matters, than in criminal cases. In fact, the Martin Report’s recommendation 36 is that “the nature and extent of disclosure should not vary based on whether the charge was prosecuted by way of indictment, summary conviction procedure, or prosecuted under the Provincial Offences Act”. When the Martin Report referred to disclosure in POA matters being “simple and brief”, the Committee was doing no more than predicting what full disclosure is apt to look like in simple prosecutions.[xiv]

24If the “the nature and extent of disclosure should not vary based on whether the charge was prosecuted by way of indictment, summary conviction procedure, or prosecuted under the Provincial Offences Act”[xv] then how do the principals outlined in Stinchcombe apply in the POA context? In addressing this question, the ONCA in McGuigan explained the right to disclosure in POA matters as follows:

A. THE GOVERNING PRINCIPLES

70 To be eligible for disclosure, information and material must be relevant. There are different modes of achieving disclosure, and the relevance inquiry operates in modestly different ways between them. What is common to each disclosure mechanism is that if the information or material lacks logical relevance, no right of disclosure will exist.

71 There are two general categories of disclosure.

72 “First party disclosure” refers to information or material the Crown is obliged, on request, to deliver to the defendant without the need for an application to the court. Material will be subject to first party disclosure only if it is “in the possession or control of the prosecuting Crown”: R. v. Gubbins, 2018 SCC 44 (S.C.C.), at para. 33.

73 If the accused wishes to compel the production of information that does not qualify for first party disclosure, it must bring a successful “third party disclosure” application, resulting in an order to have the third party produce the information. Mechanistically, this is achieved by serving notice on the third-party record holder along with a subpoena requiring the target information to be brought to court so that it will be within the control of the court if production is ordered after a third-party records hearing.

74 In Gubbins, (2018), 2018 SCC 44, 2018 CSC 44, 2018 CarswellAlta 2404, 2018 CarswellAlta 2405, [2018] 11 W.W.R. 583, 76 Alta. L.R. (6th) 213, 32 M.V.R. (7th) 1, 49 C.R. (7th) 209 (S.C.C.) Rowe J. discussed two ways that information can become subject to first party disclosure, thereby avoiding the need, delay, expense and formality of a third party record application, namely (1) as the “fruits of the investigation”, or (2) as “obviously relevant” information: at para. 33. They are the disclosure mechanisms most directly at issue here.

(1) The Fruits of the Investigation

75 The most familiar first party disclosure mechanism, developed in R. v. Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 S.C.R. 754 (S.C.C.), relates to the “fruits of the investigation”. Pursuant to Stinchcombe, the prosecuting Crown is obliged, on request, to disclose all relevant information in its possession or control relating to the investigation against a defendant.

76 As explained in Jackson, 2015 ONCA 832 at paras. 93, 95, the “fruits of the investigation” “posits a relationship between the subject-matter sought and the investigation that leads to the charges against an accused”. “This information is generated or acquired during or as a result of the specific investigation into the charges against the accused”: Gubbins, at para. 22.

77 It does not matter whether the Crown intends to rely on the fruits of the investigation at trial. The disclosure obligation includes “not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence”: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 (S.C.C.), at para. 17.

78 Still, the disclosure obligation does not encompass all things that fall into the fruits of the investigation basket. It does not extend to information in the Crown’s possession that is clearly irrelevant, privileged, or the disclosure of which is otherwise governed by law: McNeil, at para. 18.

79 Even though this first party disclosure obligation is confined to information possessed by the prosecutor, it cannot be defeated by leaving the fruits of the investigation in the hands of the investigating police force. As Charron J. explained in McNeil, at para. 14:

The necessary corollary to the Crown’s disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown.

80 She further explained, at para. 18, that the Crown has limited, reviewable discretion relating to the disclosure it makes: “The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure in the usual course may result in harm to anyone or prejudice to the public interest.”

83 Although McNeil dealt with police disciplinary records, this disclosure obligation applies to all obviously relevant information or material possessed by the investigating police force, not just obviously relevant police discipline information. This follows not only as a matter of principle. It finds support in direction provided by Karakatsanis J., for the court, in R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390 (S.C.C.), at para. 12:

In R. v. McNeil ... [t]his Court ... recognized that police have a duty to disclose, without prompting, “all material pertaining to the investigation of the accused” as well as other information “obviously relevant to the accused’s case”. [Citations omitted.]

84 The phrase “obviously relevant” “represents a comment on the obvious nature of the relevance of the record in the case”: Jackson, at para. 125; see also Gubbins, at para. 23. It does not describe a higher degree of relevance, since there is no such thing. Relevance exists if evidence has some logical tendency to make a material proposition more or less likely: R. c. J. (J.), 2000 SCC 51, [2000] 2 S.C.R. 600 (S.C.C.), at para. 47. The term “probative value” is used to describe how compelling the relevant inference is. McNeil called for “obviously relevant” information, not obviously probative information.⁴ As Rowe J. explained in Gubbins, at para. 23, “this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence.”

85 In context, the “without prompting” reference means that there should be no need for the accused to bring a third-party record application to secure obviously relevant information in the hands of the investigating police force. Once the investigating police force supplies the information to the Crown, it “should be turned over to the defence in compliance with the Crown’s Stinchcombe obligation of disclosure”: McNeil, at para. 58.

86 This is so notwithstanding that the information “may not fall fairly within the ordinary sweep of ‘fruits of the investigation’”: Jackson, at para. 116. Information that is “’obviously relevant’ to the defence case may need to be rustled up by the police, provided to the Crown and disclosed to the defence”: Jackson, at para. 116. Provided, of course, that the obviously relevant information is not privileged or subject to statutory disclosure regimes.

(3) Other Relevant Information in Possession of the Prosecuting Crown

87 There is a third way in which information can become subject to first party disclosure obligations, namely, where it is relevant and comes into the possession of the prosecuting Crown.

88 In McNeil, Charron J. recognized as much. She was addressing cases where the Crown is put on notice of the existence of other relevant information in the hands of other Crown agencies or departments, including the investigating police force. She said that in such cases the prosecuting Crown has a duty to inquire about that relevant information and to obtain it if reasonably feasible to do so: McNeil, at para. 49.

89 This obligation was described by Karakatsanis J. in Quesnelle, at para. 12, this way:

In R. v. McNeil ... this Court recognized that the Crown cannot merely be a passive recipient of disclosure material. Instead, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant to the prosecution or the defence.

90 As this passage makes plain, this obligation exists because the Crown is not an ordinary litigant, but a minister of justice, “duty-bound to seek justice, not convictions, and to avoid wrongful convictions, in the prosecutions of all offences”: Quesnelle, at para. 18. It owes this duty as an officer of the court unless the notice it receives appears unfounded: McNeil, at para. 49.

91 The prosecuting Crown’s duty to request relevant information from other Crown agents does not undermine the separation of the Crown and other Crown agents. The other Crown agents are not under an enforceable, reciprocal legal duty to hand over information that the Crown inquiries about and asks for that is not the fruits of the investigation or obviously relevant. Quoting R. v. Arsenault (1994), 1994 CanLII 5244 (NB CA), 153 N.B.R. (2d) 81 (N.B. C.A.), at para. 15, Charron J. made plain in McNeil, at para. 49, that if the Crown is denied access after making a good faith effort to secure such information it is to advise the defence that the request was denied. The accused’s remedy is not against the Crown. Instead, it should pursue a third-party record application.

92 It follows from the McNeil decision that if the Crown receives the information it requested, it is to act as gate-keeper. If the information is relevant and not privileged or covered by a statutory disclosure regime, the Crown must make first party disclosure of that information to the defence.

(4) The Manner of Disclosure

94 The Crown therefore has discretion as to the manner in which disclosure is made. That discretion is not unbridled. The first principle is that disclosure must be meaningful, in the sense that it is adequate to enable the accused to make full answer and defence: R. v. Pan, 2014 ONSC 4645(Ont. S.C.J.), 2014 CanLII 74050, at paras. 72-75. This requires that disclosure must be accessible. The disclosed information must be capable of identification and the disclosure must enable proper trial preparation: R. v. Dunn (2009), 2009 CanLII 75397 (ON SC), 251 C.C.C. (3d) 384 (Ont. S.C.J.). To enable full answer and defence, the accused must also have the means to access the disclosed information in court, as needed.

(5) First Party Disclosure under the Provincial Offences Act

95 ….It is non-contentious that full-blown Stinchcombe obligations apply in the summary prosecution of criminal offences. Similarly, although this court has not ruled directly on the question[xvi] , the obligation to make first party disclosure in POA prosecutions appears to be non-controversial: Bruce (County) v. Kramer 2007 31 M.P.L.R. (4th) 79(Ont. S.C.J.); and Ontario (Ministry of the Environment) v. Sault Ste. Marie (City) 2007 34 C.E.L.R. (3d) 123(Ont. S.C.J.). It does not matter whether the defendant’s life, liberty or security of the person is at risk. The obligation on the Crown to make first party disclosure is supported by ss. 7 and 11(d) of the Charter but does not depend on the Charter. Stinchcombe rested largely on the common law right to make full answer and defence, which is provided for in POA, s. 46(2).

25In addition to the ONCA’s holding in McGuigan the POA also governs the issue of disclosure. Section 35 of the POA states:

Particulars

35 The court may, before or during trial, if it is satisfied that it is necessary for a fair trial, order that a particular, further describing any matter relevant to the proceeding, be furnished to the defendant. R.S.O. 1990, c. P.33, s. 35.

26Based on the foregoing the scheme that governs disclosure in POA matters, in short, is as follows:

1. Is the disclosure relevant to the charges the defendant is facing?

a. Relevant disclosure is evidence that has some logical tendency to make a material proposition more or less likely or put another way is information that is required to be disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence

2. Is the disclosure “first” or “third” party disclosure?

a. First party disclosure is disclosure that is considered either:

(i) “fruits of the investigation” that led to the defendant being charged, and the prosecution is going to rely on at trial or may assist the accused in the exercise of the right to make full answer and defence,

(ii) evidence in the possession of the prosecution, either directly or indirectly by way of the investigating police force, officer, or agency, that is highly relevant and that is not either privileged, otherwise not able to be disclosed through the operation of law, or

(iii) is otherwise relevant information/evidence that may not fall fairly with the ordinary sweep of “fruits of the investigation” that the prosecuting Crown has a duty to inquire about that relevant information and to obtain it if reasonably feasible to do so.

b. Third-party disclosure is disclosure is evidence/information that is otherwise relevant that may not fall fairly with the ordinary sweep of “fruits of the investigation” that the prosecutor has an obligation to try and obtain and if it cannot then have an obligation to advise the defence as to existence of so that the defence can bring a third-party records application.

3. If the disclosure is first party, then the prosecution is required to furnish the defendant with the disclosure.

4. If the disclosure is “third-party” disclosure the accused is required to bring a third-party records application.

27Circling back to the question posed in the introduction to these reasons, how strictly must the Stinchcombe disclosure scheme be adhered to in POA matters, the answer as it usually is, it depends. It depends because if the case before a POA Court is a straightforward speeding charge then disclosure will be simple and brief and neither the prosecution nor the defence will be required to engage in a Stinchcombe analysis to determine whether the prosecution has satisfied its disclosure obligation. However, if the case before a POA Court is more complex or the penalties are significant, as was the case at bar before this Court, or in an environmental prosecution for instance then the disclosure will not be simple and brief and both the prosecution and the defence will be required to engage in a Stinchcombe analysis to determine whether the prosecution has satisfied its disclosure obligation.

28As stated in the Martin Report “proper disclosure as suggested by Sopinka J. in Stinchcombe,…will vary with the nature of the statute defining the offence, and the circumstances of the prosecution[xvii]. Therefore, the Stinchcombe disclosure scheme must always be followed in all cases that come before a POA Courts in Ontario, as it is in criminal law cases, but the nature of the engagement in a Stinchcombe analysis will depend on the nature of the charge before a POA Court.

Defendant’s Request for Addition Disclosure

29The defendant seeks the following further disclosure from the City on the basis that it is first-party disclosure:

1. Property permits from 1979 and earlier if applicable; file memorandum, emails from inspectors, and site plans related to the property, including all documents relating to City of Toronto Permit File No. 19-182202.

2. Any bylaw amendment documents in the City’s possession related to the property in or around 1979 and prior to and subsequent to 1979.

3. An unredacted copy of the disclosure provided to the defendant on May 27, 2025.

4. All field notes, memorandum, photos, statements taken, will say statements, emails as between City inspectors, and the contact information for all City inspectors who were involved with inspecting 346 Dundas.

30The basis for the defendant’s request for disclosure is that the disclosure they seek forms the basis for a potential defence. That defence according to the defendant is that the wooden balconies in question were structures that were built prior to the date they purchased 346 Dundas. However, this is not a defence that defendant can raise at trial because of the finding of the Court in Kritz v. Guelph (City), 2016 ONSC 6877:

9 Mr. Kritz submits that he is not subject to the Order to Comply because, although he is a co-owner of 108 Dublin, he did not carry out the unlawful construction. The City’s position is that the current owner is responsible for ensuring that 108 Dublin is in compliance with the BCA and the Ontario Building Code, O. Reg. 332/12 (the “OBC”). To hold otherwise would be contrary to public policy and would allow owners to avoid responsibility by simply transferring their buildings.

10 Section 12 (2) of the Act stipulates:

(2) An inspector who finds a contravention of this Act or the Building Code may make an order directing compliance with this Act or the Building Code and may require the order to be carried out immediately or within such time as is specified in the order.

11 In R. v. 1267017 Ontario Ltd. (2001), 51 W.C.B. (2d) 171 (Ont. C.J.) [2001 CarswellOnt 2953 (Ont. C.J.)], at para. 21, Lampkin J. said:

Notwithstanding the evidence that the construction appeared to be recent, which I would construe to be within the past year of inspection without actually seeking to define the term “recent”, if the building was purchased in its present condition, once the Order to Comply had been served, the Respondent had to make the necessary arrangements to obtain the Building Permit. If it sought to dispute the authority of the Building Inspector to issue the Order, then the provision for settling disputes in the Act must be employed. Failing that, he is deemed to have constructed the building without a building permit.

12 As well, Master Muir in Toronto (City) v. Tseng, 2011 ONSC 4594, 87 M.P.L.R. (4th) 220 (Ont. S.C.J.), at para 22, said:

22 The respondent also suggests that this proceeding is an abuse of process because the respondent was not the owner of the property at the time the subject addition was constructed. The respondent argues that the applicants’ only remedy is to pursue the Former Owners, presumably with charges under section 36 of the BCA. In my view, this argument is also without merit. Such an interpretation would leave a municipality without the ability to enforce compliance with the BCA, or its zoning and other by-laws, by the simple act of the transfer of a property that has been constructed or renovated in contravention of such laws and regulations. Moreover, the respondent, through her role as agent for the Former Owners, was fully aware of the applicants’ position with respect to the Property when she took title from her parents and siblings on January 6, 2011. The relief being sought on this application should come as no surprise to her.

13 I find both of those cases persuasive. To find otherwise would mean that one could avoid the requirements of the Act by simply transferring ownership. More importantly, it would mean that the City would be required to attempt to enforce the provisions of the Act on one who had no further interest in the land. That former owner would have to somehow get the new owner to comply. That interpretation would make no sense.

14 Here, if the inspector found a contravention of the Act, the order must have to be against the owner. In my view, that is exactly why Mr. Kritz made the enquiries he did before he took possession of the property when he purchased it. Mr. Kritz is bound by the order.

31Even if the defence that the defendant claims were open to them, which it is not, the defendant has not established a basis which could enable the Court to conclude that the records do in fact exist and that they are potentially relevant[xviii]. The defendant has not because the email dated March 19, 2024 from a City inspector on which the defendant relies does not discuss building permit plans. Rather, it is an email from a City inspector for direction from a supervisor because a 2^nd floor deck is attached to the defendant’s building without a permit[xix]:

32If the reference to email from a City inspector for direction, as referenced in the defendant’s materials, is not the basis for the defendant’s request for further disclosure the only other possible basis for the defendant’s request for further disclosure that was brought to the Court’s attention[xx] was an email dated November 30, 2021. This email is an email by a City Building Inspector to a City employee in the City Building Records department asking if there were other permit plans[xxi] available for 346 Dundas:

33As the prosecutor in the Respondent’s factum argued there is nothing in this email that either explicitly or implicitly rebuts the City’s position that there was no building permits issued for 346 Dundas as it pertains to the construction done to 346 Dundas that forms the basis of the July 18, 2022, Order to Comply, which is at the heart of the litigation before this Court. As such, if the defendant is relying on the November 30, 2021, email and not the March 19, 2024, email, the defendant still has not established a basis for which the Court can order the further disclosure the defendant is seeking.

34The defendant further argues that they are entitled to further disclosure in the possession of the City because the balconies in question “may have probably been built under a previous by-law that allowed such structures with the City’s approval before Amalgamation[xxii].” Without a firmer foundation than speculation, which is what the statement “may have probably” amounts to is a fishing expedition. Fishing expeditions can not form the basis for a request for disclosure by a defendant because as stated by the Supreme Court in R v. Chaplin[xxiii] reference to the possible existence of evidence is purely speculative and mere conjecture; and mere speculation and conjecture can not be the basis of a request for disclosure because then all materials produced in the course of an investigation, whether relevant or not, would have to be disclosed by the Crown, which is contrary to principles governing disclosure as outlined by the ONCA in McGuigan.

35Finally, the defendant argues that the “City’s building permit records probably contain evidence that plans and or site plans were submitted, and permits were issued before 2004, which could provide a complete response and defence to the only remaining charge[xxiv]. Again, this argument is based on speculation. Further, even if the defendant’s argument were not based on speculation, the City, as the defendant has acknowledged[xxv] does not have any building permits for the wood structures constructed at 346 Dundas that are at issue in this litigation in its possession; and that building permits that the City has in its possession for the timeframe the defendant is seeking, 1979 and 2020, have already been disclosed.[xxvi]

Conclusion

36In the party’s respective factum’s much was made about possible defences, Charter violations, limitations periods, and collateral attacks. However, these issues were not before the Court. The issue before the Court, as raised in the defendant’s motion, was whether the City should be required to provide further first party disclosure within its possession.

37It is this Court’s view that as the defendant did not establish that the City has relevant disclosure within its possession that it has not already disclosed that would allow the defendant to make full answer and defence the City is not required to provide further first party disclosure to the defendant. Therefore, the Court is not granting the order requested by the defendant.

38Now that the issue of whether there is outstanding disclosure that needs to be provided before a trial can commence has been settled the defendant’s matter can proceed to trial. If the defendant, as indicated in there notice of motion, wants to raise the issue of a violation of their Charter rights, they will be permitted to do so at the conclusion of the prosecutions case before the opening their case.

39The defendant’s trial will commence on the next juridical day that the defendant’s matter is scheduled to be before this Court.

Released: December 8, 2025.

Signed: Justice of the Peace R. Shawyer

[i] R v. Nguyen, 2020 ONCA 609 at para 26, “…the POA is intended to provide a speedy and efficient process for dealing with regulatory offences…”

[ii] Ontario. Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions. Toronto, 1993, at page 186 (hereinafter the “Martin’s Report”)

[iii] Ontario v. 974649 Ontario Inc., 2001 SCC 81 at para. 78 citing Douglas Drinkwalter & Douglas Ewart, Ontario Provincial Offences Procedure (Toronto: The Carswell Company Limited, 1980) at pp 4-7.

[iv] See York (Regional Municipality) v. McGuigan, 2018 ONCA 1062 at para 79.

[v] Canadian Charter of Rights and Freedoms, s 11(b), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[vi] See R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 headnote

[vii] Ibid., at paragraph 17.

[viii] This Court reads R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 as only referring to disclosure in strictly criminal law cases. Whereas the Court in Durham (Regional Municipality) v. Driscoll-Rogers, 2008 ONCJ 581 reads Stinchcombe as referring to disclosure in both criminal and provincial offences matters.

[ix] Supra., note vii at paragraph 26.

[x] Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993

[xi] s. 2 of the Ontario Provincial Offences Act>, as amended, states the purpose of that Act as “to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada) with a procedure that reflects the distinction between provincial offences and criminal offences”: See Durham (Regional Municipality) v. Driscoll-Rogers, 2008 ONCJ 581 at paragraph 30.

[xii] Durham (Regional Municipality) v. Driscoll-Rogers, 2008 ONCJ 581 at paragraph 31

[xiii] Ibid., note ix at paragraph 130.

[xiv] See York (Regional Municipality) v. McGuigan, 2018 ONCA 1062 at footnote 6 in paragraph 97.

[xv] Supra., note X at pg. 186.

[xvi] See York (Regional Municipality) v. McGuigan, 2018 ONCA 1062, footnote 5 at para 95 where the ONCA noted “In 1353837 Ontario Inc., (2005), 2005 CanLII 4189 (ON CA), 2005 CarswellOnt 652, 6 M.P.L.R. (4th) 51, 193 C.C.C. (3d) 468, 195 O.A.C. 213, 74 O.R. (3d) 401, 249 D.L.R. (4th) 720 (Ont. C.A.), a justice of the peace denied cross-examination sought in aid of a Stinchcombe disclosure application. A certiorari application was brought and granted on the basis that this was a jurisdictional error. This court allowed the appeal, setting aside the certiorari order. The appeal proceeded on consensus that Stinchcombe disclosure obligations applied. In Ontario v. 974649 Ontario Inc.(1998), 1998 CanLII 6098 (ON CA), 42 O.R. (3d) 354 (Ont. C.A.), and R. v. Ul-Rashid, 2014 ONCA 896, 70 M.V.R. (6th) 181 (Ont. C.A.), the Crown conceded before this court that it had failed to make proper Stinchcombe disclosure.

[xvii] Supra., note X at page 186.

[xviii] See R v. Chaplin, 1994 CarswellAlta 1069 at paragraph 30.

[xix] Affidavit of G. Di Marco dated April 6, 2025, at page 70. In the email cited by the defendant the property is referred to as 166 Seaton St, which the Court has been led to believe is the other municipal address by which 346 Dundas is known.

[xx] Respondent’s factum at paragraph 15 citing the affidavit of Guiseppe DiMarco sworn October 16, 2025, at Tab 2, pg. 52.

[xxi] Permit plans if the Court understands the Respondent’s factum dated December 3, 2025, at paragraph 15 correctly the plans that a person or entity seeking a building permit must submit to the City as part of there application for a building permit and as such are not building permits but rather building plans.

[xxii] Defendant’s Factum dated November 26, 2025, at paragraph 28. The Amalgamation that the defendant is referring to in their factum is the amalgamation of the former municipalities of Metro Toronto, Etobicoke, Scarborough, North York, East York, York, and the City of Toronto, on January 1, 1998.

[xxiii] Supra., note xviii at paragraph 30.

[xxiv] Defendant’s Factum dated November 26, 2025, at paragraph 26.

[xxv] Affidavit of Guiseppe DiMarco sworn October 16, 2025, at para. 21

[xxvi] Affidavit of Hyeji Lee sworn December 3, 2025, Exhibits D and E.