COURT OF APPEAL FOR ONTARIO

DATE: 2001-02-02

DOCKET: C34656

RE: HER MAJESTY THE QUEEN (Respondent) –and– J. L. (Appellant)

BEFORE: ROSENBERG, MOLDAVER and GOUDGE JJ.A.

COUNSEL: Lawrence Greenspon and Blair Crew, for the appellant Renee M. Pomerance, for the respondent

HEARD: January 29, 2001

RELEASED ORALLY: January 29, 2001

On appeal from the decision of Justice Helen K. MacLeod dated June 26, 2000

E N D O R S E M E N T

[1] The appellant conceded before MacLeod J. that there were grounds to issue the warrant in the sense that the prerequisites in s. 487 of the Criminal Code were met. Assuming, without deciding, that because of the nature of the records sought to be seized the issuing judge was required to impose additional conditions on the execution of the warrant, we are satisfied that the conditions imposed were sufficient.

[2] We should not be taken as agreeing with the reviewing judge that the appellant had no reasonable expectation of privacy within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms. However, on this record, the appellant has not shown any violation of s. 8 that would go to the jurisdiction of the judge to issue the warrants.

[3] As to the manner in which MacLeod J. decided which documents should be disclosed, counsel for the appellant concedes that this court has no jurisdiction to review that determination. We should not be taken as precluding an argument at trial on a fuller record that certain documents are inadmissible because of a common-law privilege or a violation of s. 7 of the Charter.

[4] Finally, we need not decide whether s. 35 of the Mental Health Act applied in this case since the test used by MacLeod J. was analogous to the test under s. 35.

[5] Accordingly, the appeal is dismissed. The documents will remain sealed until February 5, 2001.

(signed) "M. Rosenberg J.A."

(signed) "J. M. Moldaver J.A."

(signed) "S. T. Goudge J.A."