R. v. Vivar, 2009 ONCA 433

ENDORSEMENT

1Despite Mr. Moustacalis’ very helpful submissions on behalf of the appellant, we are of the view that this appeal must be dismissed. We agree with Crown counsel that some reference in the information to obtain the warrant to the appellant’s acquittal for murder was justified, since it confirmed the confidential informer’s identification of the appellant. However, the further references to the facts underlying the murder allegations were irrelevant and improper.

2That said, there is no doubt that there was an ample basis for granting the warrant after excising the impugned references. The issue then is whether the inclusion of those references was so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed. See R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) approved in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.

3In our view, the inclusion of the impugned references was not such flagrant conduct as to amount to an abuse of the search warrant process, particularly given the fact that the affiant did clearly state that the appellant had been acquitted of the charge. Thus, we are not persuaded that there was a breach of s. 8 of the Charter of Rights and Freedoms.

4Accordingly, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”