R v O'Connor

R. v. O'Connor

Ontario Court of Justice — Justice S. Ray | February 22, 2010
Ontario Court of Justice — Justice S. Ray | February 22, 2010

Background

Maurice O'Connor was convicted at trial on four charges under the Trespass to Property Act: two counts of engaging in prohibited activity on a premise (contrary to section 2(a)(ii)), and two counts of entering premises when entry was prohibited (contrary to section 2.1(a)(1)). The case centered around Air Canada premises in Toronto, where O'Connor had apparently been served with trespass notices.

The officer who prepared the notices followed what he testified was his "normal practice" — he prepared two original notices rather than making photocopies or carbon copies. However, the officer admitted he did not compare the two notices before serving one and keeping the other for his records.

Issues

1. Whether the conviction appeals should succeed based on the officer's failure to compare the two original trespass notices
2. Whether the sentence imposed was appropriate

The Pederson Doctrine and Document Comparison

Justice Ray applied the well-established principle from R. v. Pederson (1973) 15 C.C.C. (2d) 323, a British Columbia Supreme Court decision that requires officers to compare documents when two originals are prepared. The Pederson case originally dealt with breathalyzer certificates in impaired driving cases, where Burger J. ruled that an officer must compare whether a copy of the certificate of analysis served on an accused is accurate before handing it over.

Ontario courts have consistently applied this doctrine across various types of cases, particularly in drinking and driving matters. The principle is straightforward: when two original documents are prepared (as opposed to photocopies or carbon copies, which have built-in accuracy guarantees), they must be compared before service to ensure they are identical. The court found that this requirement applies equally to trespass notices under the Trespass to Property Act.

Justice Ray was clear: "I have also reviewed the transcript and I agree that there was no evidence before the learned JP that the officer who prepared the two original notices of trespass at the time they were served compared the two copies and ensured that they were the same, before he served one of them on the appellant."

The Court's Decision

The appeal succeeded completely. Justice Ray allowed the conviction appeals on the two "enter the premises when entry was prohibited" charges and substituted acquittals. For the "engaging in prohibited activity" charges, no issues were argued, so those conviction appeals were dismissed. However, the court found the sentence imposed was illegal and substituted a nominal fine of $1.00. The court also ordered O'Connor to sign a common-law peace bond for $500.00 for one year, with conditions including staying away from the Air Canada premises and a 50-meter radius around 40 Bay Street in Toronto.

Key Takeaway

When officers prepare two original documents instead of using copies, they must compare them for accuracy before service — failure to do so can invalidate the entire prosecution.

This case shows that procedural requirements aren't just technicalities — they're essential safeguards that courts will enforce strictly. If you're facing charges involving served documents, always examine whether proper procedures were followed during service.