COURT OF APPEAL FOR ONTARIO

DATE: 20060519

DOCKET: C42068

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

[1] We would dismiss the appeal.

[2] We 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.

[3] We 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.

[4] The 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.

[5] We 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.

[6] The appeal is dismissed.