R. v. O’Brien, 2026 ONSC 3053

CITATION: R. v. O’Brien, 2026 ONSC 3053

COURT FILE NO.: SCA 101893

DATE: 2026/05/25

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

BETWEEN:

HIS MAJESTY THE KING

– and –

Kyle O’Brien

Appellant

J. Caskie, for the Crown/Respondent

C. Spettigue, for the Appellant

HEARD: March 2, 2026

A.D. Hilliard J.

1The Appellant, Kyle O’Brien, appeals his finding of guilt after trial imposed by Justice Redgate on February 8, 2024. Although his appeal originally also included an appeal as to sentence, that part of the appeal was abandoned as moot at the hearing.

2For the reasons that follow, Mr. Brien’s appeal is dismissed.

Background

3Mr. O’Brien was charged with a single count of criminal harassment in relation to his former intimate partner, Alysia Reoch. The charge arose out of a series of text messages sent by Mr. O’Brien to Ms. Reoch from November 11, 2020 to February 17, 2021.

4The trial in this matter was originally scheduled in accordance with the availability of Mr. O’Brien’s counsel at the time. Three days for trial were confirmed on July 19, 2022 with the trial scheduled to commence on August 15, 2022. On August 3, 2022 the matter was brought forward and an oral application was brought by counsel for Mr. O’Brien seeking to be removed from the record after Mr. O’Brien stated he wished to represent himself. Counsel’s application was granted and Mr. O’Brien indicated that he was not intending to retain new counsel.

5As Mr. O’Brien chose to represent himself, the Crown applied for and was granted an order under section 486.3(2) for the appointment of counsel to cross-examine the complainant on Mr. O’Brien’s behalf. That Crown application was granted on September 8, 2022 over the opposition of Mr. O’Brien.

6The trial did not ultimately commence until December 8, 2023. The second day of trial was held on January 11, 2024. The sole witness at trial was Ms. Reoch. Mr. O’Brien did not testify and did not call any evidence.

7On February 8, 2024, the trial judge provided oral reasons for her decision to find Mr. O’Brien guilty of criminal harassment. In her reasons, the trial judge also refers to Mr. O’Brien’s unsuccessful challenge to the Court’s jurisdiction over him. The matter was thereafter adjourned to a date for sentencing.

8At the sentencing hearing, Mr. Spettigue appeared on behalf of Mr. O’Brien and sought an absolute discharge. The trial judge imposes a conditional discharge with a period of probation for one (1) year. Mr. O’Brien’s probationary period ended in June 2025.

Grounds of Appeal

9Between his original Notice of Appeal, Supplementary Notice of Appeal and Factum, Mr. O’Brien advanced several grounds of appeal. They can be summarized as follows:

inadequate / insufficient reasons for judgment;
violation of Mr. O’Brien’s right to a fair trial by allowing him to withdraw his O’Connor application without the advice or assistance of counsel;
reasonable apprehension of bias;
misapprehension and uneven scrutiny of the evidence;
improper admission of character evidence;
improperly relying on information not in evidence; and
unreasonable verdict on the evidence

Insufficiency / Inadequacy of Reasons

10This was a two-day one witness trial. The brevity of the trial is reflected in the reasons for judgment.

11In a mere five and a half pages of transcript the trial judge conducted an efficient and fulsome review of the issues, the law and her analysis, including her decision on Mr. O’Brien’s jurisdictional challenge. The reasons include the starting point of the presumption of innocence, a recitation of the burden of proof beyond a reasonable doubt, and an assessment of the evidence of Ms. Reoch.

12The reasons are adequate and sufficient.

Violation of the Right to a Fair Trial

13Mr. O’Brien argues that the trial judge erred in allowing him to abandon his O’Connor application without the benefit of consulting with counsel. In support of this argument, the case of R. v. Varcoe¹ is relied upon to stand for the proposition that the trial judge had an obligation to ensure that there was a clear and unequivocal wavier provided by Mr. O’Brien.

14The difficulty with this argument is that an O’Connor application is not analogous to a preliminary hearing, which was the issue in Varcoe. At issue in the Varcoe case was whether or not the accused was made aware of his right to a preliminary hearing at the time of his election under s. 536(2) of the Criminal Code.

15There is no analogous right to an O’Connor application. There is no right to bring an application for third party records enshrined in the Criminal Code. Mr. O’Brien provided no other authority for the proposition that the trial judge was obliged to ensure that there was a clear and unequivocal waiver prior to the abandonment of the O’Connor application.

16I do not accept the argument that the trial judge had a duty to ensure that Mr. O’Brien knew what he was giving up by abandoning his O’Connor application after the Crown had conceded that the documents were likely relevant. It is important to remember that at the first stage the burden on the applicant to show likely relevance is significant but not onerous. The common law threshold under O’Connor is significantly different from the statutory regime under section 278.3 of the Criminal Code.

17Additionally, likely relevance is only the first stage. Mr. O’Brien would then have had to demonstrate to the trial judge why the records should be produced to him based on the factors set out in the O’Connor decision, reiterated in McNeil.² There is nothing before me to suggest that at the balancing stage, Mr. O’Brien would have been successful in convincing the trial judge that the records should be produced to him.

18I have also considered that there is nothing filed on this appeal to provide any indication as to how cross-examination would have been different had the documents been produced to Mr. O’Brien. Production of the records would only have had a bearing on the trial if those records were used in evidence, either for the purpose of impeachment on cross-examination or as part of defence evidence. There is a complete absence of any indication as to how the records that were the subject of the O’Connor application would have been used at trial.

19I am therefore not satisfied that Mr. O’Brien’s right to a fair trial was violated by the trial judge allowing him to abandon his O’Connor application without consultation with counsel.

Reasonable Apprehension of Bias

20The argument that there was a reasonable apprehension of bias arises out of a comment made by the trial judge in her reasons for dismissing Mr. O’Brien’s challenge to her jurisdiction, in which she notes that the authority of the Court serves all people, even those “who deny the courts rule, when convenient, but who also seem eager to exploit its authority to meet its own ends.”

21Mr. O’Brien submitted that these comments of the trial judge are “troubling” and lead to a conclusion that she made impermissible findings of bad character against Mr. O’Brien at the very outset. These alleged bad character findings, according to Mr. O’Brien, support a conclusion that the trial judge engaged in prohibited propensity reasoning in concluding that Mr. O’Brien was guilty.

22Although the trial judge’s commentary on the class of litigants described in Meade v Meade³ being eager to exploit the Court’s authority when it suited their purposes was unnecessary in the circumstances, I am not satisfied that it supports a finding that she engaged in impermissible propensity reasoning or made a finding of bad character in relation to Mr. O’Brien. The comment relates generally to persons who challenged the jurisdiction of the court rather than being specifically directed at Mr. O’Brien.

23Furthermore, Mr. O’Brien’s submission that there was no evidence upon which the trial judge could find that he fell into the organized pseudo-legal commercial class of litigants is disingenuous and ignores his own submissions at trial. It was Mr. O’Brien who challenged the jurisdiction of the Court based on his assertion that he is a self-governing individual. Mr. O’Brien objected to the trial proceeding and sought to have the charge against him dismissed on the basis that the Information incorrectly identified him. Through his own submissions, Mr. O’Brien put himself into the class of litigants referred to in Meade.

24The trial judge’s findings on Mr. O’Brien’s challenge to the Court’s jurisdiction over him do not give rise to a reasonable apprehension of bias. This ground of appeal therefore fails.

Misapprehension of Evidence / Uneven Scrutiny

25Mr. O’Brien argues that the trial judge placed undue weight on the evidence of the complainant and improperly assessed the evidence for the defence. I would note at the outset, there was no evidence called by the defence so the trial judge could only have assessed Mr. O’Brien’s argument and position on the trial through cross-examination and submissions.

26The argument as to misapprehension of the evidence and uneven scrutiny is that the trial judge failed to consider the complainant’s motive to fabricate and improperly assessed the complainant’s credibility.

27Mr. O’Brien points to the evidence of the complainant about Mr. O’Brien seeing other women in support of his argument that she had a motive to fabricate. He then references the evidence of Ms. Reoch about a pattern of blocking and unblocking his number to support his argument that the trial judge should have more closely scrutinized the complainant’s credibility.

28I do not agree with Mr. O’Brien’s submission that there was clear evidence upon which the trial judge could have found that there was a motive to fabricate which she was required to address is in her reasons. Reasons for judgment do not have to address every issue that was raised at trial.

29However, here a fulsome reading of the reasons reveals that the trial judge did turn her mind to the issue of a motive to fabricate. In assessing Ms. Reoch’s evidence, the trial judge found that her evidence was “fair and balanced” and that Ms. Reoch “did not appear to be vengeful or out to get Mr. O’Brien.” Those findings reveal that the trial judge did consider and then ultimately reject the proposition that Ms. Reoch had a motive to fabricate. That finding was available to the trial judge on the evidence before her and is entitled to deference on appeal.

30Uneven scrutiny is a notoriously difficult ground of appeal. In this case, the difficulty is compounded by the fact that Mr. O’Brien did not testify. Therefore, there was no other evidence for the trial judge to consider and against which to unevenly scrutinize Ms. Reoch’s evidence. There is nothing to support the argument that the trial judge engaged in uneven scrutiny. On the evidence before the trial judge, the findings as to Ms. Reoch’s credibility and reliability were available on the evidence and they are owed deference.

Improper Admission of Character Evidence

31Mr. O’Brien argues that impermissible bad character evidence was permitted and considered by the trial judge in the form of the evidence of the complainant about the history of the relationship. Specifically, the complainant testified about toxic and controlling behaviour by Mr. O’Brien which the Crown conceded was inappropriate prior discreditable conduct.

32In considering whether or not the trial judge considered and relied upon character evidence, I return to the reasons themselves. There are two places where the trial judge refers to the evidence of the complainant about Mr. O’Brien’s abusive and controlling behaviour: first it is referenced as part of the recitation of the complainant’s evidence of the background of the parties’ relationship and what led up to their breakup; second, the trial judge refers to the complainant’s evidence about Mr. O’Brien’s toxic and controlling behaviour in the portion of the judgment where she is considering whether Ms. Reoch’s stated fear is objectively reasonable.

33In reading the reasons as a whole, I am satisfied that the trial judge did not use or rely on impermissible character evidence in finding Mr. O’Brien guilty of criminal harassment. There is no finding that Mr. O’Brien was in fact engaging in abusive or controlling behaviour during the relationship.

34There is nothing in the reasons that suggests that the trial judge engaged in impermissible propensity reasoning. There is nothing in the reasons to support a conclusion that the trial judge found that because Mr. O’Brien had engaged in abusive and controlling behaviour he therefore was disposed to the harassing behaviour that was the subject of the charge.

35It is also important to note that there was no evidence contradicting the complainant’s testimony about the text messages that were sent. Although Mr. O’Brien’s position was that the text messages were benign and therefore Ms. Reoch’s stated fear was not objectively reasonable in the circumstances, it was open to the trial judge on the evidence before her to find that the text messages were sent and that they terrified Ms. Reoch’s, which fear was objectively reasonable in the circumstances given Ms. Reoch’s testimony about the history of the relationship.

Improper Reliance on Information not in Evidence

36Text messages between the parties were made lettered Exhibit “A” at trial. It was acknowledged by the Crown during submissions that the text messages had not been proven and that Exhibit “A” only provided a snapshot of the messages between the parties.

37Mr. O’Brien argues that the trial judge improperly placed weight on this document that was not authenticated and not entered into the record as evidence. He points to the reference made by the trial judge to the text messages in her reasons for judgment in support of his argument that the messages were improperly relied on.

38I agree that the trial judge referred to the text messages in her judgment. However, on a fulsome reading of the reasons, it is clear that all of the references to the text messages by the trial judge relate to the complainant’s testimony about the text messages she received from the appellant and not the lettered exhibit filed by the Crown. There is nothing in the reasons that support the appellant’s assertion that the trial judge reviewed and relied upon the text messages filed as lettered Exhibit “A” on the trial.

Unreasonable Verdict

39The argument that the verdict was unreasonable is based on the argument: the complainant’s fear was not objectively reasonable and therefore the Crown did not prove all of the essential elements of the offence.

40The argument that Ms. Reoch’s fear was not objectively reasonable is linked in part to the argument that the trial judge improperly relied on bad character evidence. I will not repeat my comments about that issue. For the reasons already provided, this argument fails.

41The other argument in support of an unreasonable verdict is Mr. O’Brien’s position that the trial judge did not consider that there was no evidence that Mr. O’Brien was even aware that Ms. Reoch had blocked his number. The difficulty with this argument is that Mr. O’Brien’s awareness of whether or not Ms. Reoch had blocked his number is not one of the essential elements of criminal harassment. Ms. Reoch testified that she had sent Mr. O’Brien a text message asking him to stop, telling him that she did not want him to contact her. Ms. Reoch’s uncontroverted evidence is that Mr. O’Brien sent several more messages after her request that he stop messaging her.

42The mental element of criminal harassment includes knowledge that, or recklessness or wilful blindness, whether Ms. Reoch was harassed. Having accepted the testimony of Ms. Reoch as both credible and reliable, it was open to the trial judge to find that Mr. O’Brien was reckless or wilfully blind as to whether Ms. Reoch was harassed by sending several messages after she specifically asked him to stop. This finding is implicit in the reasons when read as a whole, was available on the evidence before the trial judge, and is therefore entitled to deference.

43There is no merit to the argument that the verdict was unreasonable.

Conclusion

44None of the grounds of appeal raised by Mr. O’Brien are sustainable upon a fulsome review of the reasons and the evidence before the trial judge.

45Therefore, the appeal is dismissed.

A.D. Hilliard J.

Released: May 25, 2026