COURT OF APPEAL FOR ONTARIO

DATE: 20000621

DOCKET: C33211

RE: HER MAJESTY THE QUEEN (Respondent) –and– ULYSSES
PRATAS and PRESTEVE FOODS LIMITED and SYLVIA
PANKHURST (Applicants/Appellants)

BEFORE: McMURTRY C.J.O., LASKIN and BORINS JJ.A.

COUNSEL: Paul Burstein, for the appellants
Robert W. Hubbard, for the respondent

HEARD: June 8, 2000

On appeal from the order dismissing the application for
certiorari of Whalen J. dated October 25, 1999.

E N D O R S E M E N T

[1] This is an appeal by Presteve Foods Limited and Sylvia
Pankhurst from the refusal of Whalen J. to issue of writ of
certiorari quashing a search warrant.

[2] In our view, the appeal should be dismissed for the
principles discussed by this court in R. v. Zevallos (1987), 37
C.C.C. (3d) 79. In our view, the motions judge was correct in
concluding that the non-disclosure of Mr. Pickard’s antecedents
would not have changed the decision of the justice of the peace
to issue the search warrant. In any event, the court has
discretion to refuse to issue a writ of certiorari, whether or
not a basis for it has been made out. There is no reason to
conclude that Whalen J. exercised his discretion on improper
principles.

[3] This court, in Re Church of Scientology and The Queen (No.
6) (1987), 31 C.C.C. (3d) 449 at 494 set out the test to be
applied on an application for certiorari to strike out a search
warrant. This court said the appropriate test on a certiorari
application is whether there was evidence upon which the justice
of the peace could determine that a search warrant should be
issued. It is not the task of the reviewing judge to weigh the
evidence or to determine whether the justice of the peace should
have been satisfied by the sworn information.

[4] In this appeal, clearly there was evidence upon which the
justice of the peace could determine that a search warrant should
issue. Moreover, with or without the information provided by Mr.
Pickard, there were ample grounds set out in the information to
obtain the search warrant to justify its issuance. As well,
Whalen J. was correct that any non-disclosed information with
respect to Mr. Pickard would not have altered the justice of the
peace’s decision to grant the search warrant.

[5] As the Supreme Court of Canada has held in Bisson v.
Attorney General for Canada (1994) 1994 46 (SCC), 94 C.C.C. (3d) 94, even where
material non-disclosure has been demonstrated, there is no per se
rule that a search warrant must be quashed where the unaffected
portions of the affidavit in support disclose reasonable grounds
to sustain the issuance of the search warrant.

[6] On an appeal from a refusal to issue a discretionary remedy,
the test on review is even more stringent. This court should
interfere with an exercise of discretion by the reviewing
tribunal only if the discretion was not exercised judicially.
Because the reasons of Whalen J. demonstrated that he acted
judicially in refusing the appellants their relief, this court
should not interfere.

[7] For the above reasons, the appeal is dismissed.