Court of Appeal for Ontario
Before: Laskin, MacFarland and Rouleau JJ.A.
Between
Her Majesty the Queen
Appellant
and
Todd Jason Windibank and Amy Lynn Windibank
Respondents
Counsel:
Lisa Csele, for the appellant
Frank Miller, for the respondents
Heard: May 27, 2015
On appeal from the acquittals entered on March 20, 2014 by Justice Joseph Quinn of the Superior Court of Justice, sitting without a jury.
APPEAL BOOK ENDORSEMENT
1The police executed a search warrant at the respondent’s home. They found 55.48 grams of cocaine, $11,460 of Canadian currency and $720 of U.S. currency, cell phones, a Smith and Wesson 9 mm handgun, two magazines, ammunitions and a debt list.
2The trial judge ruled that the ITO did not provide objectively reasonable grounds justifying the warrant being issued. After a s. 24(2) analysis, the trial judge concluded that the seriousness of the breach together with the impact on the Charter protected interests of the accused were such that the evidence not be admitted.
3We agree with the Crown that the trial judge’s phrasing of the objective component of the test in review of the sufficiency of an ITO and how that is to be weighed in the s. 24(2) analysis is problematic. This said, however, even accepting the trial judge’s finding that objective grounds were lacking, this alone, having regard to the trial judge’s finding of good faith does not tip the balance such that, on the Grant factors, the evidence should be excluded. The trial judge erred in his weighing of the first factor. The appeal is allowed, the acquittals set aside and a new trial is ordered.
