Court of Appeal for Ontario

Citation: R. v. Tohl, 2009 ONCA 468

Date: 20090609

Docket: C48665

Before: O’Connor A.C.J.O, Sharpe and Rouleau JJ.A.

Between

Her Majesty the Queen

Appellant

and

Mohamad Tohl

Respondent

Counsel: Lisa Mathews, for the appellant Howard Krongold, for the respondent

Heard: May 29, 2009

On appeal from the order of Justice Jean A. Forget of the Superior Court of Justice dated March 25, 2008.

APPEAL BOOK ENDORSEMENT

[1] Assuming without deciding that there was a basis for the trial judge to find that the Crown failed to disclose all the documents relative to the telewarrant and that this amounted to a breach of s. 7 of the Charter, in our view he erred in law by granting the remedy of a stay.

[2] It is well-established that a stay should only be granted as a last resort where there is no other adequate remedy or irreparable prejudice. In the circumstances of this case, there was no evidence of prejudice that could not be remedied by either an adjournment or declaration of mistrial. Trial counsel did not indicate to the trial judge that the admission made by the appellant would not have been made had there been timely disclosure of the telewarrant documents. Moreover, even if that were the case, any prejudice resulting there from could have been met by allowing the appellant to withdraw the admissions and proceed, either with the trial that had started or with a new trial after declaration of a mistrial.

[3] Accordingly, the Crown’s appeal is allowed, the stay is set aside and a new trial ordered.