DATE: 20040120
DOCKET: C38711

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) - and – N.S. (A Young Person) (Respondent)

BEFORE:

DOHERTY, ROSENBERG and MOLDAVER JJ.A.

COUNSEL:

Brad Reitz and Steve Coroza for the appellant

Robert Kellermann for the respondent

HEARD & ENDORSED:

January 19, 2004

On appeal from the acquittal of Justice Paul Reinhardt of the Ontario Court of Justice dated July 31, 2002

APPEAL BOOK ENDORSEMENT

[1] Assuming that the conduct of the security guards amounted to a detention, an arrest and/or a search, we are satisfied on the authority of R. v. Buhay (2003), 2003 SCC 30, 174 C.C.C. (3d) 97, paragraphs 25-31 (S.C.C.) that the security guards could not be considered police agents or otherwise be subject to the limitation of the Charter. We note that Buhay was decided well after the trial judge issued his reasons.

[2] The applicant does not pursue the s. 24(1) argument. That argument may be advanced on the new trial if counsel is so advised.

[3] Appeal allowed, acquittal set aside and new trial ordered.