DATE: 20060410

DOCKET: C44168

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – NATHAN ANTHONY HERMAN (Respondent)

BEFORE:

GILLESE, BLAIR and LAFORME JJ.A.

COUNSEL:

Jim Leising

for the appellant

Craig Parry, Agent for Mr. Mattson

for the respondent

HEARD & RELEASED ORALLY:

April 6, 2006

On appeal from acquittal by Justice Pat Flynn of the Superior Court of Justice dated June 7, 2005.

E N D O R S E M E N T

[1] In our view, the trial judge erred in finding that Sergeant Scott did not have reasonable and probable grounds to arrest Mr. Herman. Sergeant Scott testified that he believed Mr. Herman was involved in the offence of possession of stolen property. His concession that he did not know if the suspects had actually used or only attempted to use the stolen credit card does not justify the trial judge’s conclusion that Sergeant Scott did not know or understand “the specific crime”. The trial judge erred in imposing on the arresting officer too high a standard when requiring that he know the specific modality of the crime, particularly where the arrest involved two suspects acting in concert.

[2] We note also the respondent’s concession that the trial judge misapprehended some of the evidence in respect of the first arrest including that he had heard no evidence as to whether the female matched the dispatch description.

[3] In our view, the trial judge also erred in failing to properly consider whether Constable McKay’s subsequent arrest of Mr. Herman and the search and seizure incident to that arrest violated s. 8 of the Charter. The trial judge appears to have erroneously concluded that the Charter breach that he found occurred in relation to the first arrest, necessarily tainted the subsequent acts of all other officers, even where those subsequent acts related to separate incidents. The trial judge was required to properly consider whether the search and seizure conducted by Constable McKay which resulted in the location of all of the controlled substances and the false identification that were the subject matter of the second charges were lawful.

[4] Having failed to properly consider this matter, the trial judge failed also to advert to and consider all the factors necessary in a s. 24(2) analysis.

[5] Accordingly, the appeal is allowed and a new trial is ordered.

Signed: “E.E. Gillese J.A.”

“R.A. Blair J.A.”

“H.S. LaForme J.A.”