ONTARIO COURT OF JUSTICE

CITATION: R. v. Aim, 2026 ONCJ 357

DATE: 2026 06 16

COURT FILE No.: 4810 998 24-48111144

Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Adel AIM

Before Justice C. Faria

Heard on March 27, 2026

Oral Decision on May 11, 2026

Reasons for Ruling on s. 555 Application released on June 16, 2026

Megan Tait counsel for the Crown

Kim Scofield counsel for the accused Adel AIM

Faria J.:

1Adel Aim is charged with possessing a loaded firearm, when not in possession of a licence for a weapon, and in contravention of 3 weapons prohibitions contrary to ss. 95(1), 92(1), and 117.01 of the Criminal Code.

2The trial began in July 2025, and the Crown closed its case. Prior to calling a defence, there was a break-down in his relationship with his counsel, and she was removed from the record. Mr. Aim retained new counsel and now applies for a mistrial, or in the alternative, that I exercise my discretion pursuant to s. 555 of the Criminal Code and decline to adjudicate, permit him to re-elect a trial in Superior Court and convert the current proceeding into a preliminary hearing.

3The Crown opposes the application.

4As the parties were eager to move forward, I granted the application on May 11, 2026, with reasons to follow. These are my reasons.

I. Procedural History

5The Crown alleges that on April 2, 2024, pursuant to a Feeney Warrant, police officers attended Mr. Aim’s apartment in Toronto to arrest him for charges arising out of Alberta. Before officers attended inside the apartment, another officer observed someone whom he believed to be Mr. Aim, throw a satchel over his balcony. The satchel was retrieved and contained a firearm. Numerous Crown witnesses testified on July 28, 29, 30, August 11 and 14, 2025, two Agreed Statements of Fact were filed, as were numerous exhibits. Ms. Heaton, Mr. Aim’s previous counsel, alleged that Mr. Aim’s ss. 7, 8, 10(a) and 10(b) Charter rights were violated and sought a stay of the charges. That motion proceeded as a blended voir dire within the trial and Ms. Heaton cross-examined all the officers in that context.

6On September 2, 2025, when the Defence was to advise if it was calling evidence, Ms. Schofield appeared to inform the court that Mr. Aim had retained her to “consult” on his case. An adjournment was granted to allow Mr. Aim to decide how he was going to proceed.

7On September 24, 2025, Ms. Heaton applied to be removed from the record as there had been a breakdown in the relationship with her client. The application was granted. Mr. Aim subsequently retained Ms. Schofield.

II. The Position of the Parties

8The Applicant submits that former counsel did not request the disclosure of unredacted video which led to an “erroneous assessment of the viability of certain issues and Charter claims which include allegations of police misconduct.” This “perceived erroneous assessment” led the Applicant to make an “uniformed election” to proceed to trial in the Ontario Court of Justice rather than by way of a preliminary hearing. He submits this impacts “trial fairness” or the “appearance thereof” and constitutes a miscarriage of justice.

9The Applicant seeks a mistrial to cure the prejudice he has suffered, or in the alternative, that the court exercise its discretion, pursuant to s. 555 (1.2) and convert the proceedings to a preliminary hearing. He submits this would permit him to pursue disclosure applications and consider all options to ensure he exercises his right to full answer and defence.

10The Crown’s position is that without a successful disclosure motion for the unredacted versions of video, the application must fail, the Applicant has not established his election was uninformed, a mistrial is not the appropriate remedy, and he has not established this court should make a s. 555 order.

11Both parties referred to numerous cases in their written materials to support their position.

III. Legal Principles & Legislation

12The burden for establishing that a mistrial should be granted rests with the Applicant on a balance of probabilities.

13A mistrial is a remedy of last resort to prevent a miscarriage of justice and is declared where no other remedy short of that relief can address the harm that has occurred.¹

14The test for a mistrial is whether there is a real danger that trial fairness has been compromised. Consideration should be had for the surrounding circumstances of the case, such as the prejudice to the accused person, the seriousness of the offence, and the protection of the public.²

15I take the test to mean something substantial and serious has occurred that goes to the heart of the administration of justice in the eyes of the reasonable objective observer, as stated in R. v. Spiers 2012 ONCA 398 at para. 32:

An appearance of a miscarriage of justice requiring a new trial exists "if the irregularity would be such as to taint the administration of justice" in the eyes of a reasonable and objective observer. "We must look at whether a well-informed, [page12] reasonable person considering the whole of the circumstances would have perceived the trial as being unfair or as appearing to be so": para. 73. Also see R. v. Cameron (1991), 1991 CanLII 7182 (ON CA), 2 O.R. (3d) 633 (C.A.).

16In the alternative, the Applicant requests the court turn to s. 555 of the Criminal Code as the remedy which reads:

555 (1) If in any proceedings under this Part an accused is before a provincial court judge and it appears to the provincial court judge that for any reason the charge should be prosecuted by indictment, the provincial court judge may, at any time before the accused has entered a defence, decide not to adjudicate and shall then inform the accused of the decision.

Election before justice

(1.1) If the provincial court judge has decided not to adjudicate, the judge shall put the accused to an election in the following words:

You have the option to elect to be tried by a judge without a jury or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you are entitled to one and you or the prosecutor requests one. How do you elect to be tried?

(1.2) If the accused is entitled to a preliminary inquiry and they or the prosecutor requests one, the judge shall endorse on the information a record of the nature of the election or deemed election and continue the proceedings as a preliminary inquiry.

17Cases that have dealt with the exercise of this discretion recognize the broad jurisdiction of the court, the potential denial of liberty, the possible Charter issues raised by the evidence, whether the accused is prejudiced, and if the matter should be tried in the Superior Court for a fair trial, see R. v. Carlson, 2005 BCPC 167.

18In R. v. G.H. 2021 ONCJ 107, the court noted there should be a high standard of necessity in the public interest before proceedings are disrupted and re-started in another court, and that s. 555 can be used where it serves the interests of justice and ensures efficiency of proceedings. The court will consider fairness to the accused person, the social and public interests of the Crown, and the interests of the administration of justice.

IV. Analysis

Mistrial

19In this case, the issue raised that motivated the application is the fact previous counsel did not request unredacted versions of Body Worn Camera (BWC) videos of officers clearing the Applicant’s apartment prior to the start of the trial. The Applicant submits this disclosure is critical to the claims he may be able to make in his defence and its absence has detrimentally affected the manner by which he has proceeded thus far warranting a mistrial.

20This is an unpersuasive argument for two reasons:

i. The Crown correctly points out that the Defence can still choose to file a disclosure motion, wherein the Crown will defend the redactions as privileged information per s. 37, and the court will rule, just as it would have if the motion was made earlier. The Crown submits this is the appropriate avenue to address the perceived harm done, not the drastic measure of declaring a mistrial.

ii. The fact that the Applicant submits s. 555 as an alternative that remedies the harm he perceives to have been done to his right to full answer and defence, in effect, is a recognition that the remedy of the last resort, a mistrial, is not the appropriate remedy in this case.

21For these two reasons, I find there has been no “irregularity” that has so tainted the administration of justice, that a reasonable, well-informed, and objective observer would perceive this trial as being unfair, or appear to be unfair, warranting a mistrial. I decline to declare a mistrial

Section 555

22There is limited jurisprudence addressing the discretion granted to a trial judge to convert a trial into a preliminary hearing. For this section to apply, I must be satisfied that there is reason for the applicant to be tried in the Superior Court of Justice.

23The Applicant makes in effect four arguments to support the submission that in this case, at this time, the court should exercise its discretion per s. 555. The first two arguments fail, the third argument has some merit, and the fourth argument is persuasive.

Ineffective Assistance of Counsel

24Although the Applicant insists he is not making a claim that he was ineffectively assisted by previous counsel, he uses language in his application that suggestions exactly that. For instance, he states:

“The Applicant’s legal advice regarding election was based on, what he submits, [is] an erroneous assessment of the viability of certain issues and Charter claims which include allegations of police misconduct” leading to his “uniformed election”. (emphasis added)³

25This argument fails for three reasons.

i. There has been no evidence called that previous counsel made any “erroneous assessment” of the “viability” of any issues and claims by not requesting, and possibly obtaining, unredacted portions of the BWC video of the officers involved in this case.

ii. The Applicant’s view on his counsel’s assessment, without more, is insufficient to establish the facts material to a claim of ineffective assistance of counsel on a balance of probabilities.⁴

iii. In any event, s. 555 is not the appropriate remedy for the claim of ineffective assistance of counsel.

Uninformed Election

26The Applicant submits his election was uninformed and thus s. 555 can remedy that harm.

27Sufficient disclosure is required to make an informed decision, and the decision may even be delayed if an accused person has not received sufficient disclosure.⁵ It is important that the Applicant is aware of the strength and weaknesses of the Crown’s case before committing to a particular course of action, including alleging Charter violations.⁶

28However, though the absence of the redacted portions of the BWC videos may be significant vis-à-vis the Applicant’s options to pursue Charter claims, there is no support on the totality of the evidence the court heard, at trial, or on this application, that the absence of this one piece of disclosure so undermined the Applicant’s ability to elect, that it became an “uninformed election”.

29I do not find the Applicant’s election to have been uninformed.

Disclosure

30The Applicant submits the disclosure he seeks is relevant disclosure to claims he may or may not make regarding police misconduct. His previous counsel having not sought it has prejudiced his right to full answer and defence.

31The Crown asserts the redacted portions of the sought BWC video are privileged information which would only be disclosed after a successful motion.⁷ The inference being that if the disclosure motion fails, no harm has been done, and no remedy is required.

32Technically the Crown may be correct, but my understanding of the Applicant’s dispute with the unredacted videos not having been sought, is that decision affected and infected the totality of his defence, including how his counsel cross-examined all the Crown witnesses which undermined his right to full answer and defence.

33It appears the pursuit of the unredacted BWC video, fits within a more comprehensive contemplation of more than one allegation of police misconduct, including how the allegations made were proceeded with. It is reasonable to infer, that the Applicant’s position could be strengthened or weakened by the disclosure sought, and reasonable to infer that the cross-examinations would have been differently conducted. It is also reasonable to infer this more than a tactical issue, but rather a substantive issue. The absence of the motion and its ruling could reasonably have affected the entirety of the Applicant’s defence.

34I am mindful that previous counsel had the opportunity to request this disclosure prior to the commencement of the trial and should have done so. The Applicant is not entitled to a “re-do” on that decision and can still proceed with it now. However, this is not to say that proceeding with it now, the timing has not already prejudiced his right to full answer and defence.

Interests of Justice

35A wholistic consideration of the disclosure issue the Applicant raises in the context it has been raised, requires the careful consideration of the interests of justice.

36Current counsel Ms. Scofield made several oral submissions that provided a roadmap of what the trial process will entail given the current circumstances of the Applicant.

37She advised that should the disclosure motion proceed before me and be successful, she would apply to have Crown witnesses be re-called for further cross-examination. Even if the motion was unsuccessful in that she does not receive the full unredacted videos, she may be successful in obtaining still photos of the redacted portions of the BWC, and again, she would apply for the Crown witnesses to be re-called for further cross-examination. In addition, she advised that in her experience of search warrant protocol, she may seek to have the Crown witnesses re-called for further cross-examination in any event. There were 10 Crown witnesses that were in some way involved with the Applicant who may have to return to testify.

38She also advised there may be a re-consideration of the Agreed Statements of Fact that were filed, and she may apply to have those admissions re-visited. In her view, this could also necessitate the re-calling of witnesses, or the need for the Crown to call additional witnesses.

39The court could proceed in this fashion. Adjourning the trial to permit the Applicant to make his disclosure motion and ruling on it. Adjudicating on what basis each Crown witness should be recalled. Deciding to what extent, if any, the Agreed Statements of Fact can be revisited. Scheduling, hearing and deciding further Charter allegations on a stand-alone voir dire basis which will require the re-calling of witnesses, and, or additional witnesses.

40To continue the trial before me, would be to proceed in a manner, that would be lengthy, cumbersome, litigious, and not efficient, to ensure the Applicant’s right to full answer and defence.

41Ultimately, in my view, the Applicant lost confidence in his previous lawyer. It is highly unusual to retain counsel to “consult” on a case, when one already has counsel, and so the process from here on in will be repeatedly trying to remedy that loss of confidence.

42My discretion per s. 555 is to be exercised judicially and sparingly, however, there is no requirement that the exercise of that discretion need be in response to exceptional or extraordinary circumstances, though in this case, the timing and reason for this request could be argued to be so.

43It is also noteworthy that to continue the trial, in my view, places the Crown at a disadvantage. Having called its case, the Crown must now respond to new motions, possible new allegations, and the re-calling of evidence in a manner, an order, and for a purpose it was not properly prepared for.

44In this case, although there is no novel, difficult or unsettled legal issues better decided in Superior Court, and there is no complexity this court is not equipped to handle, to continue with the trial would be to do so in a disjointed, disruptive, time-consuming manner that is not in the interests of justice, and my discretion is to be guided by the interests of justice.

45It is in the interests of justice to proceed equitably, maximize the efficiency of these proceedings, proceed expeditiously and in a manner that minimizes disruption while maintaining the principles of fairness and the appearance of fairness front and centre, to the Applicant, the Crown and the public. These are serious charges, the Applicant’s jeopardy is high, his liberty interests significant, and his Charter allegations numerous.

46In my view, given the circumstances of this case, I find the Applicant has met the high standard required, and has satisfied me that it is in the interests of justice that I exercise my discretion pursuant to s. 555(1) and decline to adjudicate. I informed Mr. Aim on May 11, 2026, of my decision. I put the election to him, and he elected to proceed to Superior Court. I thus converted the trial to a preliminary hearing, and on consent committed him to trial in the Superior Court on all counts.

Footnotes

1. 1R. v. Jeanvenne, 2010 ONCA 706 at para. 58., R. v. Kovacs, 2025 ONCA 49 at para. 52, R. v. Donnelly, 2023 ONCA 243 at para. 16, R. v. G.C., 2018 ONCA 392.
2. 2R. v. Khan, 2001 SCC 86 at para. 79, R. v. G.C., 2018 ONCA 392 at para. 3. R. v. Burke, 2002 SCC 55 at para. 75.
3. 3Notice of Application Factum, paras. 17, & 18.
4. 4R. v. K.K.M., 2020 ONCA 736 at para. 55.
5. 5R. v. Archambault, 2024 SCC 35, at para. 141.
6. 6R. v. Girimonte (1997), 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33 (Ont. C.A.)
7. 7Respondent Factum, para. 14, R. v. Gillespie, 2021 ONSC 6258.