DATE: 20060511

DOCKET: C42627

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – ANTHONY CASIMIR (Respondent)

BEFORE:

GOUDGE, GILLESE AND LAFORME JJ.A.

COUNSEL:

Nick Devlin

for the appellant

Michael McKee

for the respondent

HEARD & RELEASED ORALLY:

May 3, 2006

On appeal from the acquittal entered by Justice Paul Bentley of the Ontario Court of Justice dated October 27, 2004.

E N D O R S E M E N T

[1] We propose to deal with this appeal on the basis of s. 24(2). We will take as a given that the trial judge found a s. 8 violation and leave for another day, on a fuller record, whether in like circumstances the Crown could demonstrate the necessary safety concerns. However, in our view, the s. 24(2) analysis done here cannot stand. It was based on clearly misapprehended evidence and it failed to properly address a number of relevant considerations.

[2] In our view, a proper analysis yields the conclusion that the evidence should not have been excluded. As to the seriousness consideration, we accept the trial judge’s finding that this was a level three search and was done for the purpose of preserving evidence. However, on the evidence accepted by the trial judge, it was a minimally intrusive search and was done in the privacy of a bedroom with the door closed. The officer conducting the search reasonably believed he was in compliance with the police manual in doing it on site rather than at the police station and he made serious efforts to respect the personal dignity of the appellant in conducting it.

[3] As to the administration of justice, this was an accused charged with a serious drug offence that occurred while he was on probation for a similar offence and while he was inside a crack house. Given that this evidence was critical to the charge, it would bring the administration of justice into disrepute to exclude it. We conclude therefore, that on the Collins factors, a contrary conclusion to that reached by the trial judge is necessary.

[4] The appeal is allowed. The acquittal set aside and a new trial ordered.

"S.T. Goudge J.A."

"E.E. Gillese J.A."

"H.S. LaForme J.A."