Ontario Court of Justice

Date: March 23, 2026

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: In writing.

Reasons for Judgment released on March 23, 2026

Counsel:

C. Bendick, counsel for the Prosecution

D. Rosso, counsel for the Defendant

Justice of the Peace Shawyer:

Introduction

[1] The defendant, Jacques Andriano (hereinafter the "defendant"), initially brought a disclosure motion in this matter before the Court in 2025. The defendant's initial disclosure motion was denied by this Court on December 8, 2025[^1].

[2] When the defendant's matter returned to Court on December 15, 2025, the Court was advised that the defendant, through a Freedom of Information Act (hereinafter "FOI") request, had obtained documents that would support a 2nd motion for disclosure. Based on this new information the Court allowed the defendant to serve and file a further disclosure motion seeking the disclosure that had been denied by this Court on December 8, 2025.

[3] These are the Courts reasons regarding the defendant's 2nd disclosure motion.

Background

[4] On 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.

[5] In 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.

[6] On 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.

[7] On 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.

[8] On 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.

[9] On 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.

[10] On 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.

[11] On 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 3rd floor additions.

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

[12] On 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.

[13] On 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.

Defendant's Request for Addition Disclosure

[14] The Court received a copy of the defendant's 2nd disclosure motion in early 2026. The Court did not receive a reply to the defendant's 2nd disclosure motion from the City.

[15] The Court spent a considerable amount of time reading and re-reading the defendant's 2nd disclosure motion. The Court did so because it was difficult to determine what defences the defendant may be raising at trial, what disclosure was being sought, and how that disclosure is relevant and may support the defences the defendant may raise at trial.

[16] Based on the Court's reading of the defendant's 2nd disclosure motion, the defendant is making the following arguments:

1. The defendant is/or was the subject of politically motivated complaints that led to there being charged with failing to comply with an order dated July 18, 2022 that they did not need to comply with because the construction in question was done before they bought the subject building and was done by a previous owner pursuant to City of Toronto Bylaw 574-78 and an Order of the Ontario Municipal Board dated September 29, 1978: Affidavit of G. DiMarco dated January 7, 2026, at paragraphs 10 and 15, and exhibit "C".

2. The City deliberately withheld bylaw 574-78 and the Order dated September 29, 1979, which allowed the construction of balconies that encroach on City Property, from the defendant: Affidavit of G. DiMarco dated January 7, 2026, at paragraph 10 and 11, and exhibits "C" and "D".

3. Bylaw 574-78 and the Order dated September 29, 1979, which allowed the construction, contradicts claims by certain City employee that there is no encroachment agreements, for balconies that form part of the subject property, registered on the title of the subject property or in the City's Encroachment Database: Affidavit of G. DiMarco dated January 7, 2026, at paragraph 11, and exhibit "D".

4. The City's withholding of disclosure hindered the defendant's ability to argue that the balconies that form part of the subject property are old and preexisting; thereby hindering the defendant's ability to make full answer and defence to the charge before the Court: Affidavit of G. DiMarco dated January 7, 2026, at paragraph 10.

5. Due to a politically motivated complaint, City inspectors may have overlooked, were negligent or ignored existing documents that allowed for the construction at the subject property that was done by previous owners pursuant to bylaw 574-78 and the Order dated September 29, 1979: Affidavit of G. DiMarco dated January 7, 2026, at paragraph 13.

6. City inspectors were aware that the construction at the subject property was not recent as they were aware that the construction at the subject property was done by previous owners pursuant to bylaw 574-78 and the Order dated September 29, 1979. Affidavit of G. DiMarco dated January 7, 2026, at paragraph 20 and 21, and exhibit "F".

7. The existing balconies attached to the subject property that the defendant maintains were constructed by previous owners pursuant to bylaw 574-78 and the Order dated September 29, 1979, serve as fire escapes approved of by the City Fire Prevention Service since the 1970's. Affidavit of G. DiMarco dated January 7, 2026, at paragraph 16.

8. The February 9, 2023, Order to Comply with an order dated July 18, 2022, made pursuant to section 12, subsection 2 of the Building Code Act should never have been issued or was laid under an in-correct by-law because the construction (the building of balconies that encroach on City property and a room on the 3rd floor of the subject property) at the subject property was done by previous owners pursuant to Bylaw 574-78 and the Order dated September 29, 1979: Affidavit of G. DiMarco dated January 7, 2026, at paragraphs 13 and 17.

9. Some of the documents that the defendant received through their FOI request contradict the City's narrative about the construction of the balconies attached to the subject property that encroach on City property (i.e. a 311 Call alleging safety concerns about the balconies being built: Affidavit of G. DiMarco dated January 7, 2026, at paragraph 14, and exhibit "E".

[17] Accordingly, the defendant is seeking the field notes, memoranda, and investigators files in the possession of the City.

[18] If the Court read the defendant's 2nd disclosure materials correctly the defendant is seeking the above noted disclosure for two reasons. The first reason is that the disclosure is relevant to and in support of their Charter of Rights and Freedom[^2] application. The second is that the disclosure is relevant to and may support their defence(s) to the charge before the Court, which is a strict liability offence.

[19] The defendant argues that they may have three defences to the charge before the Court. Those defences are (1) officially induced error defence, (2) a statute of limitations defence, and (3) a legal non-conforming use defence.

The Law and Analysis

[20] The scheme that governs disclosure in POA matters is as follows[^3]:

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[^4] because it relates to the accused's ability to meet the Crown's case, raises a defence, or otherwise hinders the ability of the defendant to raise a 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.

[21] This Court initially denied the defendant request for disclosure for two reasons. Those reasons were that (1) the initial request for disclosure appeared to be little more than a fishing expedition and (2) one or more of the defences that the defendant argues they may raise at trial are not defences that can be raised.

[22] Despite the Courts initial denial of the defendant's request for further disclosure the Court is inclined to grant the defendant's 2nd request for the same disclosure. The Court is inclined to do so because the new documents that the defendant has come into possession of through their FOI request appear to support potential defences and due to relevancy.

[23] The legal test governing disclosure initially developed by the Supreme Court of Canada (hereinafter "SCC") in Stinchcombe and summarized in R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 SCR 307 is as follows:

58. [...]The rules may be summarized in a few statements. The Crown must disclose all relevant information to the accused, whether inculpatory or exculpatory, subject to the exercise of the Crown's discretion to refuse to disclose information that is privileged or plainly irrelevant. Relevance must be assessed in relation both to the charge itself and to the reasonably possible defences. The relevant information must be disclosed whether or not the Crown intends to introduce it in evidence, before election or plea (p. 343). Moreover, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses (p. 345). This Court has also defined the concept of "relevance" broadly, in R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, at p. 467:

One measure of the relevance of information in the Crown's hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed — Stinchcombe, supra, at p. 345. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.

60. As the courts have defined it, the concept of relevance favours the disclosure of evidence. Little information will be exempt from the duty that is imposed on the prosecution to disclose evidence. As this Court said in Dixon, supra, "the threshold requirement for disclosure is set quite low. . . . The Crown's duty to disclose is therefore triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence" (para. 21; see also R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, at paras. 26-27). "While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant" (Stinchcombe, supra, at p. 339).

[24] As the Court stated in R. v. Gateway Industries Ltd[^6] "an accused has an initial onus to establish a basis for the court to obligate the crown to search out the document, review it and argue for its exclusion". Initially the defendant did not satisfy this onus.

[25] With their 2nd disclosure motion the defendant has satisfied their onus. The defendant has because when the Court considers the information that has come to light through the defendant's FOI request and the concept of relevance, which the defendant has now established and favours disclosure, this Court is left with no other choice than to grant the defendant's 2nd request for disclosure.

[26] Finally, the City if it opposes the defendant's disclosure request it has an obligation to argue for its exclusion. In this matter the City initially argued against the defendant's disclosure request. However, the Crown has not responded to the defendant's 2nd motion for disclosure, which leaves the Court with no other conclusion than the City is not opposing the defendant's 2nd request for disclosure.

Conclusion

[27] The City, shall as soon as practicable, shall search its records and provide to the defendant all field notes, memoranda, and investigators files in their possession that have to do with the charge the defendant faces before this Court. The Courts expectation is that the City will provide the requested disclosure to the defendant in a fashion that will not impede the argument of the defendant's pending Charter application on its scheduled dates.

Signed: Justice of the Peace R. Shawyer

[^1]: R v. Andriano, 2025 ONCJ 644, 2025ONCJ 644.

[^2]: Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[^3]: For a more fulsome explanation of the law governing disclosure in POA matters see R v. Andriano, 2025 ONCJ 644.

[^4]: 1991 CanLII 45 (SCC).

[^5]: 2003 SCC 70, [2003] 3 SCR 307

[^6]: [2004] 6 W.W.R. 329, 174 Man. R. (2d) 159, 2 C.E.L.R. (3d) 37, 2003 MBQB 97 (Man. Q.B.)