Court of Appeal for Ontario

Date: 2025-04-15
Docket: C70493

Before:
Michal Fairburn, David M. Paciocco, Alison Harvison Young

Between

His Majesty the King
Respondent

and

Barrington Grant
Appellant

Appearances:
Breana Vandebeek, for the appellant
Andrew Hotke, for the respondent

Heard: 2025-04-14

On appeal from the conviction entered by Justice Edward Prutschi of the Ontario Court of Justice on September 9, 2021.

Reasons for Decision

Introduction

[1] This is an appeal from a conviction for possession of a loaded firearm contrary to s. 95(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46.

Background

[2] The appellant had challenged the admissibility of evidence seized pursuant to a warrant. The information to obtain (ITO) sworn in support of the warrant was heavily redacted owing to confidential informant privilege. The appellant’s application was dismissed, after which he was convicted on the uncontested evidence admitted at trial.

[3] Following his conviction, in a separate but related proceeding involving the same ITO (R. v. Jassem), a Garofoli application succeeded – despite the Charter ruling at the appellant’s trial – and the proceedings were stayed. Shortly after the stay was entered in the Jassem proceeding, the Crown entered stays in relation to two other matters, namely R. v. Vinogradsky and R. v. El-Zahawi, 2023 ONSC 2686.

[4] In September 2023, this court allowed the appeal of one of the appellant’s co-accused who had been tried separately and convicted on the basis of the same evidence that had been found admissible at the appellant’s trial: R. v. Khamo, 2023 ONCA 614. This court accepted the Crown’s concession that the proceedings in Jassem and Vinogradsky were admissible as fresh evidence and that the Khamo appeal should be allowed. The conviction was quashed and a stay of proceedings was entered.

The Khamo Decision

[5] This court in Khamo, at paras. 8-10, noted as follows:

The appellant seeks to adduce as evidence in the appeal, extracts from the proceedings in Jassem and Vinogradsky. The Crown concedes that the material should be received by this court, the appeal allowed, and the convictions quashed.

We accept the Crown’s concession. Evidence is admissible on appeal if it is “in the interest of justice” to receive that evidence. The material proffered by the appellant impacts directly on the integrity of the criminal process in this case. The Crown’s concession in two subsequent proceedings that the trial should be stayed because the accused were unable to make full answer and defence without disclosure the Crown could not make would be entirely inconsistent with a Crown argument on this appeal that the appeal should be dismissed.

The appellant presently stands convicted and sentenced as a result of a trial which the Crown has effectively conceded in two other prosecutions should not have gone ahead. Fairness requires that the appellant’s prosecution also be stayed under s. 24(1).

Disposition

[6] In light of the history of this matter, the Crown respondent concedes this appeal. We agree with this appropriate concession for the reasons given by the Crown, and also for the reasons set out in this court’s decision in Khamo.

[7] The appeal is allowed, the conviction is set aside, a new trial is ordered, and a stay of that new trial is entered.

[8] We thank counsel for their responsible approach to this matter.

“Michal Fairburn”
“David M. Paciocco”
“Alison Harvison Young”