DATE: 20000609

DOCKET: C32089

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) and DUKE MYERS

(Appellant)

BEFORE: MORDEN, AUSTIN AND GOUDGE JJ.A.

COUNSEL: Richard J. Posner

For the appellant

Feroza Bhabha

For the respondent

HEARD: June 1, 2000

On appeal from the conviction of Finnestad J. on October 5, 1998

and from sentence imposed on October 30, 1998.

E N D O R S E M E N T

[1] Despite Mr. Posner’s able submissions, we are not persuaded

that the trial judge erred in her application of the second and

third categories of factors set forth in Collins in admitting the

evidence of the weapon.

[2] The appellant submits that the trial judge erred in not

considering the degree of departure from reasonable and probable

grounds in effecting the search. It is true that the trial judge

did not expressly refer to this factor but we think that, in all

of the circumstances shown in the evidence, the degree of

departure was not significant. There was a risk to the safety of

the officers and to others in the area and little opportunity to

conduct further investigation. Further, in so far as the

identification of the appellant as the person described by the

informant is concerned, the appellant, in accordance with the

informant’s description, was the only male at the club wearing an

orange shirt with cream coloured pants. In our view, the trial

judge’s finding of good faith is reasonably supported by the

evidence.

[3] The appeal is dismissed.

“J.W. Morden J.A.”

“Austin J.A.”

“S.T. Goudge J.A.”