Court of Appeal for Ontario

Date: 2025-05-09
Docket: COA-24-CR-0457
Panel: Tulloch C.J.O., Roberts and Monahan JJ.A.

Between

His Majesty the King
Respondent

and

Jomal Brown
Appellant

Counsel for the Appellant: Leora Shemesh and Rameez Sewani
Counsel for the Respondent: Jennifer Conroy and Sabina Burdo

Heard: 2025-05-07

On appeal from the convictions entered by Justice John B. McMahon of the Superior Court of Justice, dated July 24, 2023.

Reasons for Decision

[1] The appellant appeals from his convictions for possession of various illicit drugs for the purpose of trafficking, possession of proceeds of trafficking, and several firearm offences. The appeal includes the application judge’s dismissal of his Charter application. His Charter application was dismissed on the basis that the appellant had no reasonable expectation of privacy and therefore lacked standing to bring the application because he did not reside in unit 627 where the items were seized.

[2] The Crown has very responsibly and commendably, as an officer of the court, raised a trial fairness issue that just came to light yesterday during the preparation for the appeal. Specifically, Crown counsel highlighted a discrepancy between the positions taken by Crown counsel (not Crown counsel on appeal) on the Charter application and the trial: on the Charter application, the Crown argued that the appellant did not reside in unit 627 but was only a “privileged guest”; at trial, the Crown took the contrary position that the appellant resided with his girlfriend in unit 627.

[3] Crown counsel, with the consent of the appellant’s counsel, submits that to remedy this trial unfairness issue, the appeal should be allowed and there should be a new trial on all issues, including the appellant’s Charter application to exclude the seized evidence from his trial.

[4] We accept the parties’ proposed remedy as the most appropriate means to redress the trial unfairness that occurred in this case. Accordingly, the appeal is allowed. The dismissal of the appellant’s Charter application and the convictions are set aside and a new trial on all issues is ordered.

“M. Tulloch C.J.O.”
“L.B. Roberts J.A.”
“P.J. Monahan J.A.”