COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Applicant/Appellant) v. CARRIE LEIGH MUNSHAW and JADE BARSALOU (Respondents)
BEFORE: DOHERTY, LANG and JURIANSZ JJ.A.
COUNSEL:
Nicholas Derlin for the appellant
R. Craig Bottomley for the respondent Munshaw
P. Andras Schreck for the respondent Barsalou
HEARD & ENDORSED: May 18, 2006
On appeal from the acquittal entered by Justice Fairgrieve of the Ontario Court of Justice dated April 19, 2004.
A P P E A L B O O K E N D O R S E M E N T
1We would dismiss the appeal.
2We agree with the trial judge that most of the information relied on by the informant to obtain the warrant was the product of an unreasonable search conducted by Officer Murphy prior to the obtaining of the warrant.
3We do not agree that the trial judge should have amplified the record relied on to obtain the warrant by reference to evidence adduced before him which was of undetermined reliability and which was not shown to have been known to, much less accepted by, the informant as accurate at the time he swore the information.
4The trial judge properly held that the warrant could not stand and that the search had to be treated as a warrantless search. Viewed in that manner, it violated the respondents’ rights under s. 8 of the Charter.
5We see no error in the trial judge’s s. 24(2) analysis. He chose to emphasize the seriousness of the s. 8 breach. He cannot be faulted for doing so. Absent any error in law or principle in the consideration of s. 24(2), this court should defer to the trial judge’s ruling.
6The appeal is dismissed.