Citation: R v. Omer, 2026 ONSC 4263 Court File No. CR-25-11401655-0000
5
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
10
- v - ADIL OMER
15
R E A S O N S F O R D E C I S I O N
20 BEFORE THE HONOURABLE JUSTICE P. ROGER
On July 10, 2026, at OTTAWA, Ontario
25
30APPEARANCES:
Z. Horricks Counsel for the Crown
N. Lust Counsel for Adil Omer
FRIDAY, JULY 10, 2026
R E A S O N S F O R D E C I S I O N
5 The accused brings this application under ss.
462.34 and 462.341 of the Criminal Code for the release of seized monies to pay for his reasonable legal expenses. The Crown opposes the application, arguing that the accused has not
10 proven that he has no other assets or means available to pay for his reasonable legal
expenses. The Crown’s arguments include that the accused has provided insufficient evidence of his financial circumstances and has not proven that
15 Legal Aid is not an available means.
I have decided to allow the application, in part, as it relates to the reasonable legal expenses of his current lawyer.
20
The accused is charged with drug trafficking offences and possession of the proceeds of crime. He was arrested as part of a two-month police investigation following the search of his
25 residences and vehicle on March 3, 2025 where
drugs and about $195,000 in cash were found. The accused was arrested on March 3, 2025, and has been detained since. Previously, Mr. Omer had been in custody on other matters for about four
30 years, from 2019 to 2023.
Under s. 462.34, an accused must prove on the balance of probabilities three statutory preconditions. That he has an interest in the funds, and that no other person appears to be the
5 lawful owner or lawfully entitled to the funds are conceded by the Crown. It leaves at issue whether the accused has proven on the balance of probabilities that he has no other assets or means available for the purpose of meeting his
10 reasonable legal expenses. The Crown argues that the accused has not proven this statutory
precondition. I disagree.
The court must conduct a significant and in-depth
15 review of the facts on such an application to determine if the funds are truly necessary in the circumstances. This creates a narrow category of individuals who can qualify for this remedy. It is important not to conflate the statutory
20 preconditions being proven with the exercise of the court’s discretion and balancing between the objectives of this legislation, which is only done after the preconditions have been proven.
However, conducting an in-depth review of the
25 facts to determine whether the funds are truly necessary is fact-specific depending on the circumstances of each case, and does not necessarily require, in all cases, that every document be produced for inspection, or that every
30 stone be turned.
Here, I do not disagree that the accused has provided a cursory affidavit, providing no back-up document to corroborate his evidence. In some cases, this would be fatal to such an application.
5 However, this is not that case. The accused has been incarcerated for most of the time since 2019 except for 2024 until his arrest in March 2025. His only family in Canada are his mother and younger sister. His mother has modest employment
10 and cannot assist. The accused’s younger sister
is married with children, and he did not inquire considering his sister’s family and financial circumstances, which I find reasonable in the circumstances. The accused’s mother does own an
15 unknown portion of her home, but she has no legal obligation to assist her 42-year-old son, nor does his sister.
The accused has not held regular type employment
20 since he was about 15 years old and has not filed income tax returns in the recent past. He has one empty bank account and swore an affidavit that he has no assets or means. He cannot be required to provide what does not exist and, alternatively, if
25 he has been untruthful, I doubt that he would
disclose where these assets and means are hidden. Importantly, and this distinguishes this from some of the other cases relied upon, his residences and vehicle were thoroughly searched by the police on
30 March 3, 2025 where $173,900 and $12,010 were found in different locations. The accused
testified that he kept his cash with him at all times, which seems corroborated by the large amount of cash found in his vehicle and bedroom by the police during their thorough search. It
5 therefore seems reasonable to think that the police found the accused’s cash. That the accused was able to obtain a small car loan in 2024 seems inconsequential given his incarceration since March 2025.
10
Regarding the availability of Legal Aid as another means available, I agree with my colleagues who have held that there is no requirement to apply for Legal Aid on such an application. However
15 the onus is on the applicant to establish that he or she has no other assets or means available.
The Supreme Court in R. v. Rafilovich 2019 SCC 51, indicates at para. 65, that “other means” has been interpreted broadly to include what is described
20 at that paragraph. As outlined earlier, I am satisfied that the accused has established that he has no access to other sources of financial assistance.
25 About Legal Aid, the accused testified that one of his earlier lawyers advised him that he could not qualify for Legal Aid. Although, for its truth this is hearsay, the rules of evidence are relaxed slightly on such an application and hearsay may be
30 admitted if it is reliable and trustworthy (see R.
v. West, ONCA at para. 29
endorsing R. v. Allan (2003),64 O.R. (3d)
610). This mirrors general principles of reliability and necessity. What makes the statements from the accused containing hearsay
5 information from his lawyer reliable is that similar findings are stated in many of the decisions dealing with such applications. For example, at para. 65 of the Rafilovich decision, the Supreme Court states:
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accused persons often cannot receive legal aid because the seized property is attributed to them and effectively disqualifies them from receiving assistance, even though they cannot
15 actually access their seized property. This occurred with Mr. Rafilovich.
Similar statements were made in other cases, including, for example, the decision in R. v.
20 Bullock 2024 ONSC 4928, at paras. 25 and 26. Such statements are not evidence in this case, but they go towards establishing that the hearsay evidence provided by the accused about what his earlier lawyer told him is sufficiently reliable and
25 trustworthy. I therefore accept the hearsay
evidence about that and find that the accused has met his onus of establishing that he has no other means available. The onus on the accused is on the balance of probabilities and, at some point
30 having met his onus, the onus shifts to the Crown to disprove this evidence, which would seem easy
to prove should the position of legal aid be other than as stated in these other decisions.
Consequently, the accused has met the statutory
5 preconditions for the release of the funds. Where the prerequisites are established, this court may order that the property, or a part of the property, be returned to the applicant or accused, subject to such reasonable conditions as the judge
10 thinks fit. In applying its discretion, the court must balance the primary purpose that crime does
not pay with the secondary purposes of providing access to a lawyer and giving meaningful weight to the presumption of innocence.
15
On this issue, the Crown concedes that this balancing favours the release of funds for the reasonable legal fees of the applicant’s current lawyer, but not for those of his previous two
20 lawyers because that work is completed, diminishing its impact on the factors which could favour disbursements. I agree.
This brings us to the final stage of this
25 application, the reasonableness of legal fees to be disbursed which is to be heard in a separate hearing. We will therefore break for this, and I will hear submissions from the Crown, and will hear submissions from the accused in camera to
30 allow for the disclosure of what might be protected information, as provided by s. 462.34.
... SUBMISSIONS AND IN-CAMERA PROCEEDINGS
On the reasonableness of the legal fees, counsel
5 for the accused seeks an hourly rate of $325 or
$3,000 per day of court appearance, plus tax. He seeks 32 hours for the work conducted to date, and
63.5 hours for anticipated work, for a total of
$44,055.88 after tax. The Crown only challenges
10 the hourly rate and the 55 hours required to prepare for the s. 8 Charter application.
I have reviewed the Legal Aid tariff, which is required by the legislation, and find the hourly
15 rate and restrictions for work to be billed allowed by Legal Aid insufficient considering the complexity of this matter which involves two months of surveillance and thousands of pages of disclosure. The s. 8 Charter application will be
20 complex and might involve more than what is anticipated. For a matter of this complexity, I find the suggested rates of $325 per hour or
$3,000 per day of court appearances plus tax, reasonable. I also find that 55 hours to prepare
25 for a complicated Charter application over the
validity of a search warrant of this complexity reasonable. Accordingly, I find the hourly rate, daily rate, and time suggested by counsel for the applicant reasonable, as per the attached Appendix
30 A. The amounts at Appendix A are comparable or less to amounts approved in other decisions that I
have reviewed. In any event, on the facts of this case, they are reasonable, and the Legal Aid rate and limits on allowed work are not.
5 The application is therefore allowed with funds to be disbursed as per the attached Order.
... END OF REASONS
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APPENDIX A COUNSEL'S DOCKETED WORK
WORK COMPLETED
WORK
HOURS x HOURLY RATE
TOTAL
Disclosure Review: January 15th, 16th, 19th, February 20th
241\ and 27th
25 hours x $325/hr
$8,125.00
Release of Seized Funds Factum, NOA, Affidavit
10 hours x $325/hr
$3,250.00
Client meeting, evidence review
3 hours x $325/hr
$975.00
TOTAL
32 hours x $325
$12,350.00 x HST (1.13) =
$13,955.50
ANTICIPATED WORK
WORK
HOURSxHOURLYRATE
TOTAL
Judicial Pre-Trial
2 hours x $325/hr
$600.00
Trial Scheduling Conference
30min x $325/hr
$125.00
Detention Review (preparation of materials and
preparation of surety)
6 hours x $325/hr
$1,950.00
Detention Review (hearing)
$3,000 per day
$3,000.00
Preparation of section 8 Charter Application (including Legal Research, re-review of disclosure, preparation of written materials and BOA)
55 hours x $325/hr
$16,500.00
1 day Charter application hearing
$3,000 per day
$3,000.00
TOTAL
63.5 hours + two days of Court x $325
$26,637.50 X HST (1.13) =
$30,100.38
GRAND TOTAL (Work completed and Anticipated Work)= $38,987.50 X HST (1.13) =
$44,055.88 after tax.
Court File Number(s): 25-G11401655B
COURT OF ONTARIO
(Superior Court of Justice) (East Region)
BETWEEN:
HIS MAJESTY THE KING
- and -
ADIL OMER
Respondent
Applicant
BEFORE THE HONOURABLE )
JUSTICE P. E. ROGER ) J u l y 1 0 , 20 26
FUNDING ORDER PURSUANT TO SECTION 462.34(4)(c)(ii)
UPON APPLICATION made by the Applicant ADIL OMER for a funding order pursuant to section 462.34(4)(c)(ii) of the Criminal Code of Canada;
AND UPON BEING satisfied that, with respect to the Property seized by the police on March 3rd, 2025, that the applicant has no other assets or means available to pay for legal expenses and no other person has a valid interest in the Property;
THIS COURT ORDERS THAT:
$ 44,055.88 of the Property seized shall be transferred to the trust account of the Applicant’s solicitor, Nikolas Lust, The Law Offices of Nikolas J. Lust, solely for the purposes of representing Adil Omer with his criminal proceedings stemming on indictment 25-G11401655B.
This sum shall be inclusive of all counsel fees, disbursements and HST, as may be necessary to complete Mr. Adil Omer’s current proceedings.
Should additional funds remain in trust upon the completion of Mr. Adil Omer’s matter, the remaining funds shall remain in trust until counsel for Mr. Omer and counsel for the Respondent, Mr. Zachary Horricks or his designate, apply to the court for direction with respect to the transfer of any remaining funds.
Fees chargeable by Mr. Lust shall be $325.00 per hour or $3,000.00 when for a day of court plus HST and disbursements, as per the attached Appendix A (for the rates and hours indicated thereon).
Before any portion of the monies are transferred from Mr. Lust’s trust account, to satisfy legal fees, Mr. Lust shall:
(a) Present an itemized account to Mr. Adil Omer for the client’s acknowledgement of his agreement as to the necessity and reasonableness of the fees and his consent to payment, and;
(b) Provide a copy of the account to Zachary Horricks, of the Public Prosecution Service of Canada or his designate at least 10 days prior to disbursing funds, in order for the Crown to determine within 7 days of receiving notice of the account whether it wishes to provide notice to Mr. Adil Omer, through Mr. Lust, that the Crown requires a taxing of the legal fees account pursuant to s. 462.34(5.2) of the Code.
Should Mr. Lust at any time cease to be the counsel of record for Mr. Adil Omer in these proceedings, the remainder of the funds in Mr. Lust’s trust account shall be forthwith transferred to the custody of the Ottawa Police Service, in consultation with Mr. Zachary Horricks or his designate.
In the event that Mr. Adil Omer wishes to contest an account submitted by Mr. Lust, Mr. Lust shall apply to this Court for a ruling pursuant to s. 462.34(5.2) and shall, in respect of any redacted account submitted to the Crown, file a sealed unredacted version of said account as part of the application for the Court's review.
Either party may apply to vary this Order upon ten (10) days clear notice to the other party.
Any further appearance regarding this order, including for its taxation, contest by Mr. Omer, revision, or for additional direction or disbursements, shall be scheduled before me, unless that is not possible.
DATED at the City of Ottawa, Ontario, on the 10th day of July, 2026
Justice of the Superior Court of Justice
SUPERIOR COURT OF JUSTICE
(Superior Court of Justice) (East Region)
IN THE MATTER of an application by the Accused Applicant for a Funding Order pursuant to s. 462.34(4)(c)(ii) of the Criminal Code to meet reasonable legal expenses.
BETWEEN:
HIS MAJESTY THE KING
Respondent
- and -
ADIL OMER
Applicant
FUNDING ORDER PURSUANT TO SECTION 462.23(4)(c)(ii)